School District Denver v Keyes Petition for Writ of Certiorari

    No.

In The

Supreme (£mrt o f tije MnxUb States
October Term, 1989

SCHOOL DISTRICT NO. 1,
DENVER, COLORADO, et al.,

Petitioners,

WILFRED KEYES, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

M ic h a e l  H. Ja c k so n  
Semple & Jackson 
The Chancery Building 
1120 Lincoln Street 
Suite 1300
Denver, Colorado 80203 
(303) 595-0941

P h il  C. N e a l  
Counsel o f Record 

Neal Gerber & Eisenberg 
208 South LaSalle Street 
Suite 900
Chicago, Illinois 60604 
(312) 269-8000

Attorneys fo r  Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220



QUESTIONS PRESENTED
1. Whether a school district that fully implemented a 

comprehensive remedial plan that resulted in a racially 
neutral, fully desegregated student attendance pattern, 
and maintained full compliance with that plan and all court 
orders relating to it for over a decade, was entitled to 
be released from continuing judicial control over student 
assignments.

2. Whether a district court, having decided that a 
remedial student assignment plan need no longer be ad­
hered to by the school district, after more than ten years 
of full compliance with the plan, and having dissolved the 
injunction requiring such plan, may nevertheless subject 
the school district to continuing judicial control in the form 
of an injunction that requires the district to maintain 
racial balance in all schools of the district for an indeter­
minate period of time (and perhaps permanently).

3. Whether a school district may validly be subjected 
to an injunction forbidding it to operate any school that 
becomes “ racially identifiable,”  where no standard for 
measuring “ racial identifiability” is provided and where 
the districtwide average of the minority school population 
has already reached more than 60 percent.

4. Whether a school district may validly be subjected to 
an injunction that contains any requirement of racial bal­
ance that is applicable to every school in the district and, 
if not, whether any form of continuing injunction to main­
tain racial balance is permissible, consistent with the Con­
stitution and with the specificity requirements of Rule 65 
of the Federal Rules of Civil Procedure.



11

PARTIES
The following parties are now or have been interested 

in this litigation or any related proceedings:
Plaintiffs:
WILFRED KEYES, individually and on behalf of CHRISTI 
KEYES, a minor; CHRISTINE A. COLLEY, individually and 
on behalf of KRIS M. COLLEY and MARK A. WILLIAMS, 
minors; IRMA J. JENNINGS, individually and on behalf 
of RHONDA 0. JENNINGS, a minor; ROBERTA R. WADE, 
individually and on behalf of GREGORY L. WADE, a minor; 
EDWARD J. STARKS, JR., individually and on behalf 
of DENISE MICHELLE STARKS, a minor; JOSEPHINE 
PEREZ, individually and on behalf of CARLOS A. PEREZ, 
SHEILA R. PEREZ and TERRY J. PEREZ, minors; MAXINE 
N. BECKER, individually and on behalf of DINAH L. 
BECKER, a minor; and EUGENE R. WEINER, individual­
ly and on behalf of SARAH S. WEINER, a minor.
Plaintiff Intervenors:
MONTBELLO CITIZENS’ COMMITTEE, INC., CONGRESS 
OF HISPANIC EDUCATORS, an unincorporated associa­
tion; ARTURO ESCOBEDO and JOANNE ESCOBEDO, in­
dividually and on behalf of LINDA ESCOBEDO and MARK 
ESCOBEDO, minors; EDDIE R. CORDOVA, individually 
and on behalf of RENEE CORDOVA and BARBARA COR­
DOVA, minors; ROBERT PENA, individually and on behalf 
of THERESA K. PENA and CRAIG R. PENA, minors; 
ROBERT L. HERNANDEZ and MARGARET M. HER­
NANDEZ, individually and on behalf of RANDY R. HER­
NANDEZ, ROGER L. HERNANDEZ, RUSSELL C. HER­
NANDEZ, RACHELLE J. HERNANDEZ, minors; FRANK 
MADRID, individually and on behalf of JEANNE S. MA­
DRID, a minor; RONALD E. MONTOYA and NAOMI R. 
MONTOYA, individually and on behalf of RONALD C. 
MONTOYA, a minor; JOHN E. DOMINGUEZ and ESTHER 
E. DOMINGUEZ, individually and on behalf of JOHN E. 
DOMINGUEZ, MARK E. DOMINGUEZ and MICHAEL J.



Ill

DOMINGUEZ, minors; and JOHN H. FLORES and ANNA 
FLORES, individually and on behalf of THERESA FLORES, 
JONI A. FLORES and LUIS E. FLORES, minors; MOORE 
SCHOOL COMMUNITY ASSOCIATION and MOORE 
SCHOOL LAY ADVISORY COMMITTEE, CITIZENS AS­
SOCIATION FOR NEIGHBORHOOD SCHOOLS, an unincor­
porated association, and on behalf of all others similarly 
situated.
Additional Internenors:
SUSAN TARRANT, WADE POTTER, DEBORAH POTTER, 
DANIEL J. PATCH, MARILYN Y. PATCH, CHRIS ANDRES, 
RONALD GREIGO, DORA GREIGO and RANDY FRENCH.
Defendants:
SCHOOL DISTRICT NO. 1, DENVER, COLORADO; THE 
BOARD OF EDUCATION, SCHOOL DISTRICT NO. 1, DEN­
VER, COLORADO; WILLIAM C. BERGE, individually and 
as President, Board of Education, School District No. 1, 
Denver, Colorado; STEPHEN J. KNIGHT, JR., individual­
ly and as Vice President, Board of Education, School Dis­
trict No. 1, Denver, Colorado; JAMES C. PERRILL, FRANK 
K. SOUTHWORTH, JOHN H. AMESSE, JAMES D. VOOR- 
HEES, JR., and RACHEL B. NOEL, individually and as 
members, Board of Education, School District No. 1, Den­
ver, Colorado; ROBERT D. GILBERTS, individually and as 
Superintendent of Schools, School District No. 1, Denver, 
Colorado; and their successors, EDWARD J. GARNER, as 
President, Board of Education, School District No. 1, Den­
ver, Colorado; DOROTHY GOTLIEB, as Vice President, 
Board of Education, School District No. 1, Denver, Colo­
rado; NAOMI L. BRADFORD, SHARON BAILEY, MARCIA 
JOHNSON, TOM MAURO and CAROLE H. McCOTTER, as 
members, Board of Education, School District No. 1, Denver, 
Colorado; and RICHARD P. KOEPPE, Ph.D., as Superin­
tendent of Schools, School District No. 1, Denver, Colorado.



IV

Defendant Intervenors:
MR. AND MRS. DOUGLAS BARNETT, individually and on 
behalf of JADE BARNETT, a minor; MR. AND MRS. JACK 
PIERCE, individually and on behalf of REBECCA PIERCE 
and CYNTHIA PIERCE, minors; MRS. JANE WALDEN, 
individually and on behalf of JAMES CRAIG WALDEN, 
a minor; MR. AND MRS. WILLIAM B. BRICE, individually 
and on behalf of KRISTIE BRICE, a minor; MR. AND 
MRS. CARL ANDERSON, individually and on behalf of 
GREGORY ANDERSON, CINDY ANDERSON, JEFFERY 
ANDERSON and TAMMY ANDERSON, minors; MR. AND 
MRS. CHARLES SIMPSON, individually and on behalf of 
DOUGLAS SIMPSON, a minor; MR. AND MRS. PATRICK 
McCARTHY, individually and on behalf of CASSANDRA 
McCa r t h y , a minor; MR. RICHARD KLEIN, individual­
ly and on behalf of JANET KLEIN, a minor; and MR. 
AND MRS. FRANK RUPERT, individually and on behalf 
of MICHAEL RUPERT and SCOTT RUPERT, minors.



V

TABLE OF CONTENTS
Page

Questions Presented ............................................... i
Parties ........................................................................  ii
Table Of Authorities ............................................... vi
Opinions Below ........................................................  1
Jurisdiction ................................................................  2
Constitutional Provision Involved.........................  2
Statement Of The Case ......................................... 2
Reasons For Granting The Writ .........................  11

I. The Supervisory Injunction Upheld 
By The Court Of A ppeals Is Con­
trary To The Remedial Limits E stab­
lished By This Court’s Decisions A nd 
Is In Conflict W ith The Decisions Of
Other Circuits ....................................... 11

II. The Vagueness Of The Injunction As 
Upheld By The Court Of A ppeals 
Calls F or The E xercise Of This 
Court’s Supervisory Power ................ 16

Conclusion ................................................................... 20
Appendices:

A—Opinion of the United States Court of Appeals for 
the Tenth Circuit, January 30, 1990

B—Memorandum Opinion and" Order of the United 
States District Court for the District of Colorado, 
June 3, 1985

C—Order for Further Proceedings of the United 
States District Court for the District of Colorado, 
October 29, 1985

D—Memorandum Opinion and Order of the United 
States District Court for the District of Colorado, 
February 25, 1987

E—Memorandum Opinion and Order of the United 
States District Court for the District of Colorado, 
October 6, 1987



VI

TABLE OF AUTHORITIES
Cases: Page:
Dowell v. Bd. o f  Educ. o f Oklahoma City PvMic 

Schools, 890 F.2d 1483 (10th Cir. 1989), cert, 
granted, 58 U.S.L.W. 3610 (U.S. Mar. 27, 1990)
(No. 89-1080) .................................................  11, 12, 20

Dowell v. Bd. o f Educ. o f Oklahoma City Public
Schools, 795 F.2d 1516 (10th Cir. 1986) . . . .  13

Keyes v. School Disk No. 1, 413 U.S. 189 (1973) .. 2
Keyes v. School Disk No. 1, 521 F.2d 465 (10th

Cir. 1975) ............................................................. 3
Keyes v. School Disk No. 1, 576 F. Supp. 1503

(D. Colo. 1983) ...................................................  3
Keyes v. School Disk No. 1, 380 F. Supp. 673

(D. Colo. 1974) ................................................... 4
Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987) ..

................................................................. 8,14,15,17,19
Morgan v. Nucci, 620 F. Supp. 214 (D. Mass.

1985)   14
Pasadena City Bd. o f Educ. v. Spangler, 427 U.S.

424 (1976) .......................................  9, 12, 13, 14, 16, 19
Price v. Denison Independent School District, 694

F.2d 334 (5th Dist. 1982) .................................... 17
Spangler v. Pasadena City Bd. o f Educ., 611 F.2d

1239 (9th Cir. 1979) ...............................  8,14,15,19
Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402

U.S. 1 (1971) ..............................................12,13,14,17
United States v. Overton, 834 F.2d 1171 (5th Cir.

1987) ......................................................................  19

Statutes:
28 U.S.C. § 1254 ...........
Fed. R. Civ. P., Rule 65

2
16, 19



In The

Supreme (Enurt nf the Umteh States
October Term, 1989

SCHOOL DISTRICT NO. 1,
DENVER, COLORADO, et aL,

Petitioners,
v.

WILFRED KEYES, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

OPINIONS BELOW
The opinion of the court of appeals (Appendix A) is 

reported at 895 F.2d 659. The June 3, 1985 opinion and 
order of the district court (Appendix B) is reported at 
609 F. Supp. 1491. The October 29, 1985 order of the dis­
trict court is reproduced in Appendix C. The February 
25, 1987 opinion and order of the district court (Appen­
dix D) is reported at 653 F. Supp. 1536. The October 6, 
1987 opinion and order of the district court (Appendix E) 
is reported at 670 F. Supp. 1513.



—2—

JURISDICTION
The judgment of the court of appeals was entered on 

January 30, 1990. The jurisdiction of this Court is based 
on 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States Con­

stitution provides in pertinent part: “ [No State shall] deny 
to any person within its jurisdiction the equal protection 
of the laws.”

STATEMENT OF THE CASE
This case is a sequel to this Court’s decision in Keyes 

v. School Dist. No. 1, 413 U.S. 189 (1973), which ruled 
that a finding of discrimination in one geographic part of 
the Denver school system gave rise to a presumption of 
districtwide discrimination.1

On remand from this Court a districtwide desegrega­
tion plan was ordered which, as modified by a subsequent 
decision of the court of appeals, was fully implemented 
in the 1976 school year. In that year, as the district court 
found in the present proceedings, “ the Denver school 
system [could] be considered desegregated with respect 
to pupil assignments.”  App. B35. As a result of the stu­
dent assignment plan ordered by the court, in that school 
year only one of the 119 schools in the Denver school sys­
tem varied by more than a de minimis amount from the 1

1 Citations to all the reported decisions in the history of the case 
are provided in note 1 of the opinion below. See App. A3. The 
jurisdiction of the district court is based on 28 U.S.C. §§ 1331 and 
1343.



—3

court’s targeted range of + 15% of the districtwide Anglo/ 
minority percentage.

The student assignment plan implemented pursuant to 
the 1976 decree (sometimes referred to as “ the Finger 
Plan” ) has remained the basic framework for the school 
system ever since. The Finger Plan involved extensive 
re-drawing of school boundaries, pairing of many elemen­
tary schools and use of satellite zones, with busing of a 
large fraction of the pupil population.2 The only changes 
in the plan have been adjustments made pursuant to court 
order in 1979 and 1982. The 1982 adjustments eliminated a 
number of the previous pairings and created more neigh­
borhood schools as well as two magnet schools. A number 
of elementary schools were closed pursuant to each of the 
1979 and 1982 orders.

In 1984 the school district moved that the system be 
declared unitary and that the jurisdiction of the district 
court be terminated. In the alternative, it moved that the 
1976 decree be modified by dissolving the provisions pre­
scribing student assignments.

The plaintiffs opposed the motion and countered by mov­
ing for extensive further relief, including revisions in the

2 In addition to those student-assignment provisions, the decree 
dealt comprehensively with facilities, faculty, transportation, extra­
curricular activities, and other aspects of the district’s operations. 
It also prescribed a bilingual education program. The bilingual pro­
visions were eliminated by the court of appeals as not supported 
by any finding of constitutional violation. 521 F.2d 465, 482-83. 
Later, on the complaint of an intervening class of limited English 
proficiency children, the bilingual program of the district was held 
inadequate under 20 U.S.C. § 703(f). 576 F. Supp. 1503 (1983). That 
ruling resulted in a consent decree, referred to as the Language 
Rights Consent Decree of August 17, 1984. See Interim Decree 
110, App. E8.



- 4 -

attendance plan for the purpose of correcting racial/ethnic 
imbalances that had developed over the preceding years 
and particularly since the 1982 revisions. App. C1-C2.

After a hearing, the court in 1985 denied the school dis­
trict’s motion and ordered the Board of Education to sub­
mit plans for remedying certain deficiencies found by the 
court, including plans for rectifying the “ resegregation” 
at three elementary schools whose Anglo percentage had 
fallen to 18%, 15%, and 12% respectively.3 App. B32, C3. 
While maintaining its position that further remedial orders 
were not appropriate, the school district advised the court 
of measures it had adopted that were intended to encour­
age increased Anglo attendance at the three schools on 
a voluntary basis, and it stated its opposition to any man­
datory reassignments. (The measures proposed included 
certain experimental curricular themes at two of the schools 
and the installation of a Montessori magnet program at 
the third.) The plaintiffs renewed their request for man­
datory reassignments, including new pairings, to improve 
racial balance at the schools in question.4

3 The total enrollment and the racial/ethnic composition of the 
Denver public schools have changed materially over the years that 
the Finger Plan has been in effect, as shown by the following 
table:

Total enrollment Anglo enrollment %
Anglo

1973-74 87,620 49,394 56%
1976-77 61,680 30,427 49%
1983-84 51,159 20,043 39%
See 380 F.Supp. 673, 674; App. B33.
4 The other deficiencies found by the district court in its 1985 
order related to distribution of teachers and administration of stu­
dent hardship transfers. In response to the court’s order for plans 
to address the deficiencies, the Board advised the court that it 

(Footnote continued on following page)



5 -

After a second hearing, which took place two years after 
the first hearing on the school district’s motion, the dis­
trict court determined that no further remedial orders 
were required. It authorized the Board to implement the 
proposals the Board had put forward and it denied the 
plaintiffs’ motion for further relief. The court further 
determined (in contrast to its 1985 decision refusing to 
lift or modify the injunction) that the time had come to 
“ relax” judicial supervision over the school district, and 
to give the Board greater independence in managing its 
affairs while at the same time retaining judicial control 
until such time as the court was prepared to declare the 
district unitary and enter a permanent injunction. App. 
D9-D13.

The district court then implemented that decision by 
entering an “ Interim Decree.”  That decree (1) dissolved 
the original remedial decree, expressly relieving the Board 
of any duty to maintain the attendance plan initially or­
dered by the court as the remedy for past constitutional 
violations, but (2) placed the Board under a continuing 
obligation to maintain some unstated degree of racial bal­
ance. Specifically, the Interim Decree provided that:

1. * * * * [The defendants] shall continue to take 
action necessary to disestablish all school segregation, 
eliminate the effects of the former dual system and 
prevent resegregation.

2. The defendants are enjoined from operating 
schools or programs which are racially identifiable as 4

4 continued
had adopted resolutions on both matters that imposed more strin­
gent administrative requirements. App. D3-D4. Although the Board 
contended that the district court was improperly imposing new 
requirements that went beyond the original decree, neither of 
these matters was contested by the Board on the appeal to the 
Tenth Circuit.



6

a result of their actions. The Board is not required 
to maintain the current student assignment plan of 
attendance zones, pairings, magnet schools or pro­
grams, satellite zones and grade-level structure. 
Before making any changes, the Board must consider 
specific data showing the effect of such changes on 
the projected racial/ethnic composition of the student 
enrollment in any school affected by the proposed 
change. The Board must act to assure that such 
changes will not serve to reestablish a dual school 
system.

3. The constraints in paragraph 2 are applicable 
to future school construction and abandonment.

*  *  *  *

7. The defendants shall maintain programs and 
policies designed to identify and remedy the effects 
of past racial segregation.
*  *  *

12. This interim decree, except as provided herein, 
shall supersede all prior injunctive orders and shall 
control these proceedings until the entry of a final 
permanent injunction.

App. E5-E8.
No time limit was set for the duration of the Interim 

Decree nor did the court specify what steps the district 
must take or what conditions it must meet in order to 
be declared unitary and be released from the court’s 
supervisory jurisdiction.5 The court indicated, however,

5 The court said:
The timing of a final order terminating the court’s supervisory 
jurisdiction will be directly related to the defendants’ perform­
ance 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 

(Footnote continued on following page)



-7 -

that even “ when unitary status is achieved” the court’s 
supervision would not be lifted until the court was “ rea­
sonably certain that future actions will be free from in­
stitutional discriminatory intent.” The court did not define 
“ institutional discriminatory intent” but made clear that 
it meant something other than “ discriminatory intent” of 
the board and its members: “ [I]t is not, however, mea­
sured by the good faith and well meaning of individual 
Board members or of the persons who carry out the pol­
icies and programs directed by the Board.” App. E5. (The 
court had already indicated, however, that it considered 
the Board’s declared policy for the future inadequate be­
cause it did not promise to avoid “ discriminatory impact” 
as distinguished from “ discriminatory intent.”  See App. 
B57.)

Two years prior to entry of the Interim Decree, the 
school district had appealed the court’s order of June 3, 
1985 refusing the 1984 motion for a finding of unitariness 
or for dissolution of the student-assignment provisions. 
Although that interlocutory appeal had been properly taken 
under 28 U.S.C. § 1292(a)(1) from an order refusing to mod­
ify an injunction, the court of appeals had postponed con­
sideration of the merits of the appeal until further action 
in the district court.

That further action did not come until 1987. The district 
then appealed the order entering the Interim Decree. The 
court of appeals consolidated the two appeals for hear­
ing, heard them on January 17, 1989 and decided both 5

5 continued
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.

A pp . E4.



■8-

appeals on January 30, 1990. Thus five additional years 
of full compliance with the comprehensive student assign­
ment plan originally ordered in 1976 have taken place 
since the hearing on the school district’s initial motion for 
a declaration of unitariness or termination of court super­
vision over student assignments.6

The court of appeals affirmed both (1) the district court’s 
1985 refusal to declare the district unitary or to grant 
relief from the court’s control over student assignments 
and (2) the district court’s 1987 order dissolving the 1976 
decree and replacing it with the Interim Decree, except 
that the court ordered minor modifications in the Interim 
Decree.

As to the 1985 order, the court ruled that the district 
court had been in error in concluding that a school district 
could not be found unitary as to student assignments sep­
arately from an overall finding of unitariness. But the 
court held that that error was immaterial since the school 
district, according to the court of appeals, had not chal­
lenged the district court’s conclusion of “ fact”  that the 
“ resegregation” of three elementary schools was not caused

6 There has never been any question that the school district was 
in full compliance with the student assignment plan ordered in 1976 
as modified by orders of the court in 1979 and 1982. The “ resegre- 
gative”  effects relied on by the district court in its 1985 order 
were simply effects attributed by the court to certain modifica­
tions permitted by the court after hearing in 1982. There have been 
no “ resegregative actions” by the school district unless actions 
taken with court approval can be so described. Since the school 
district has at all times been in full compliance with the court- 
ordered student assignment plan, the case is an even stronger case 
for unitary status than existed in Spangler v. Pasadena City Bd. 
o f Edue., 611 F.2d 1239 (9th Cir. 1979) and Morgan v. Nucci, 831 
F.2d 313 (1st Dist. 1987), discussed infra.



- 9

by demographic changes. App. A14.7 That “ finding” was 
enough, the court thought, to support a conclusion that 
the district was not unitary. In reaching that conclusion 
the court of appeals entirely ignored the fact that the 
district court had found that as of 1976 the Denver school 
district had been fully desegregated as to student assign­
ments, as well as the fact that there had never been a 
failure to comply strictly with the court-ordered student 
assignment plan (and the district court had found none). 
App. B35.

The court of appeals also found that the district court’s 
refusal to declare the district unitary even as to student 
assignments was supported by the district court’s “belief’ 
that the district was “without the ability and without the 
will to ensure that the effects of prior segregation [do] 
not resurface.” App. A16.

In affirming the 1985 order, the court of appeals took 
no note of the fact that the district court’s 1987 action 
had undermined the district court’s own 1985 refusal to

7 The court of appeals’ observation on this point was a misreading 
of the record and of the school district’s position. There was never 
any issue in the district court as to whether the three schools had 
become racially imbalanced as a result of “ demographic”  change, 
although the district court’s opinion created an impression that 
such a contention had been made. The obvious fact, which was 
not in dispute, was that Anglo pupils had failed to appear in the 
expected numbers after the changes in assignments made by the 
court-approved modifications in 1982. The school district’s primary 
contention was that the court had no power, in view of this Court’s 
decision in Pasadena City Bd. o f  Educ. v. Spangler 427 U.S. 424 
(1976), to order continuing adjustments to correct for racial imbal­
ance merely because it had “ reserved jurisdiction” to do so each 
time it entered an order. The court of appeals did not discuss the 
school district’s argument that the principle of Spangler could not 
properly be circumvented or frustrated by such a “ bootstrap” 
theory.



10

find the district unitary or grant relief from the student 
assignment provisions. 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 had become unitary at 
least as to student assignments. Instead, the court of ap­
peals treated the “ Interim Decree” as in substance a 
“ continuation” of the original decree (App. A20), notwith­
standing that the Interim Decree itself stated that it “ su- 
persede[d] all prior injunctive orders” (App. E8) and that 
the district court had referred to the superseded provi­
sions as “ obsolete.” App. E4.

The court declined to modify the decree’s provisions 
ordering the Board to “ prevent resegregation” and for­
bidding the Board to operate any schools that are “racially 
identifiable.” It merely cautioned that it is not necessary 
that each school must “ necessarily reflect the racial pro­
portions in the district as a whole.” 8 App. A19-A21. The 
court approved the Interim Decree as a commendable ef­
fort to give the school district “ more freedom,” although 
it expressed sympathy with the district’s “ frustration with 
not knowing its precise obligations.” App. A21.

Like the district court, the court of appeals provided 
no comfort as to when the “ interim” decree might end 
or how the district might bring that about, saying only, 
“ We recognize that the showings required to obtain uni­
tariness are difficult to make. But when the district makes 
those showings is entirely within its own control.” App. 
A22.

8 The court of appeals did strike paragraph 4 of the Interim De­
cree on the ground that it was no more than an injunction to obey 
the law. App. A18. See discussion infra, pp. 18-19.



-1 1

REASONS FOR GRANTING THE WRIT
I. The Supervisory Injunction Upheld By The Court 

Of Appeals Is Contrary To The Remedial Limits 
Established By This Court’s Decisions A nd Is In 
Conflict W ith The Decisions Of Other Circuits.

This case, like the Tenth Circuit’s decision in the Dowell 
case, in which certiorari has been granted,9 raises funda­
mental issues as to the obligations of a school board once 
the remedial process of desegregation has been carried 
to completion. In this case, as in its Dowell decision, the 
Tenth Circuit has adopted a view of the remedial proc­
ess that is irreconcilable with principles previously recog­
nized by this Court, and that is also in conflict with de­
cisions in other circuits.

In Dowell the issues arise in the context of determin­
ing the effect to be given to an express determination 
that a school district has become “ unitary”  and determin­
ing what standard governs the dissolution of a remedial 
decree. In this case the issues arise because the district 
court, although declining to declare the school district 
unitary, found it appropriate to dissolve the remedial de­
cree as it pertained to student assignments but then im­
posed a new decree that perpetuates indefinitely the obli­
gation to maintain racial balance in each of the schools 
in the system.

In contrast to Dowell, no question has been raised in 
this case as to the propriety of the dissolution of the re­
medial student assignment plan under which the Denver 
district had operated for eleven years. Thus this case 
raises no question about the applicable standard for modi­

9 Dowell v. Bd. o f Educ. o f Oklahoma City Public Schools, 890 
F.2d 1483 (10th Cir. 1989), cert, granted, 58 U.S.L.W. 3610 (U.S. 
Mar. 27, 1990) (No. 89-1080).



- 1 2 -

fying or dissolving a longstanding injunction; the law of 
the case is that the dissolution has properly taken place. 
The case therefore throws into even sharper relief than 
the Dowell case the question of the nature of a school 
district’s continuing obligations once the original remedial 
order has been fully executed and a court has determined 
that it need no longer be followed.

Under the teachings of this Court in Swann v. Charlotte- 
Mecklenburg Bd. o f Educ., 402 U.S. 1 (1971), and in 
Pasadena City Bd. o f Educ. v. Spangler, 427 U.S. 424 
(1976), the fact that the Denver school district had reached 
the point where the judicially-prescribed remedy was com­
plete should have meant that the school district was en­
titled to be returned to full autonomy, at least over stu­
dent assignments, and that the district court could not 
perpetuate its regulatory control merely by failing to pro­
nounce the magic word “ unitary.” For “ having once im­
plemented a racially neutral attendance pattern in order 
to remedy the perceived constitutional violations,” as the 
Court said in Spangler, “ the District Court had fully per­
formed its function of providing the appropriate remedy 
for previous racially discriminatory attendance patterns.” 
427 U.S. at 436-37.

In disregard of that principle, the district court pro­
ceeded to replace the original remedial decree with a new 
injunction whose terms require the school board to main­
tain some indeterminate degree of racial balance in the 
schools for an indefinite period (and with the apparent ex­
pectation on the part of the court that such an obligation 
will become permanent).10

10 The district court said:
A  permanent injunction is necessary for the protection of 

all those who may be adversely affected by Board action. The 
(Footnote continued on following page)



13

The new decree enjoins the Denver school board to 
“ prevent resegregation.” App. E6, 11. It also declares 
that the duty “ imposed by the law and by this interim 
decree” includes the “ maintenance”  of the desegregated 
condition of the Denver schools. App. E6, f4. The decree 
also requires the Board to consider the projected racial/ 
ethnic composition of each school before making any 
changes in the student assignment plan, and it enjoins the 
Board from operating any school that is “ racially identi­
fiable.”  App. E6, f2.

Such an injunction is contrary to principles established 
by the decisions of this Court and of other circuits.

First, this Court made clear in both the Swann case 
and the Spangler case that once the affirmative duty to 
desegregate schools has been accomplished, a school dis­
trict has no constitutional obligation to make continuing 
adjustments of student assignments in order to preserve 
racial balance, and in Spangler the Court ruled that a 
district court has no power to order a school district to 
do so. That ruling was made in Spangler even though the 
school district had not been declared unitary. (Although 10

10 continued
Tenth Circuit Court of Appeals has recently emphasized and 
repeated the admonition that “ the purpose of court-ordered 
school integration is not only to achieve, but also to maintain 
a unitary school system.”  [Citing Dowell v. Bd, o f  Educ., 795 
F.2d 1516, 1520 (1986; emphasis in quote).] Resegregation can 
occur as much by benign neglect as by discriminatory intent. 
A beneficiary of a permanent injunction may come to court 
to enforce the rights obtained in this litigation by showing that 
the injunctive decree is not being obeyed.

App. D12 (emphasis added).
Interestingly, the authority cited by the Tenth Circuit in the 

quoted passage was this district court’s statement in its 1985 opin­
ion in the present case. See Dowell, 795 F.2d at 1520.



—14—

the reference in Swann was to “year-by-year” adjust­
ments, the Spangler decision made clear that the princi­
ple involved is that once a racially neutral attendance plan 
has been established, a school district has no further af­
firmative obligation to pursue racial balance in student 
enrollments in response to changing compositions of the 
schools. 427 U.S. at 436-37.)

Second, the Tenth Circuit’s approval of the notion that 
a court may continue to exert some “ looser degree of con­
trol” over student assignments, notwithstanding the fact 
that the purposes of a remedial plan have been fulfilled 
so that that plan has been dissolved, conflicts with the 
decisions of the First Circuit in Morgan v. Nucci, 831 
F .2d 313 (1987) and the Ninth Circuit in Spangler v. Pas­
adena City Bd. o f Educ., 611 F.2d 1239 (1979).

In Morgan v. Nucci the district court had attempted 
to preserve its power over student assignments in the 
same manner as did the district court in this case. It 
entered what it called final orders prescribing future con­
duct for the Boston school board, explaining that

the final orders seek to provide assignment guidelines 
for future years which are as flexible as consistency 
with a workable student desegregation plan permits; 
and an irreducible minimum of safeguards for insur­
ing a future in which the Boston public schools may 
flourish on a racially unitary, racially unidentifiable, 
yet flexible and clear foundation of equal access and 
equal educational opportunity for all students.

620 F. Supp. 214, 222 (D. Mass 1985).
The court of appeals for the First Circuit vacated the 

district court’s order. With respect to the district court’s 
effort to provide a modified injunction controlling future 
student assignments the court said, “ The schools are



15

either unitary or not in respect to student assignments.” 
Morgan v. Nucci, 831 F.2d at 326. The court held that 
unless new or different facts should appear on remand, 
the school district should be found unitary as to student 
assignments and the injunction as to student assignments 
should be permanently vacated. Id.

Similarly, in Spangler v. Pasadena City Bd. o f Educ., 
after the remand from this Court’s decision, the Ninth 
Circuit held improper as a matter of law a district court’s 
refusal, on the ground that continued monitoring was 
necessary in order to prevent resegregation, to relinquish 
jurisdiction over the school board. The Ninth Circuit 
ordered that all injunctive orders be vacated and that the 
jurisdiction of the district court over the case be termi­
nated. (Again, there was no express finding that the 
school district was “ unitary.” )

The decision below is in conflict with the Ninth Circuit’s 
decision for the further reason that it approved as grounds 
for continuance of jurisdiction reasons substantially iden­
tical with those which were rejected by the Ninth Cir­
cuit as insufficient as a matter of law. Thus the court of 
appeals in this case upheld the district court’s order “ re­
taining supervisory jurisdiction over the Denver public 
schools” on the basis of the district court’s “ belie[f| that 
the district was both without the ability and without the 
will to ensure that the effects of prior segregation did 
not resurface.” App. A16. Exactly the same kinds of justi­
fication had been advanced by the district court in the 
Spangler case, and the court of appeals held that such 
apprehensions about the future actions of the school board 
could not justify continued displacement of the board’s in­
terest in “ managing [its] own affairs, consistent with the 
Constitution.” 611 F.2d at 1241; see also id. at 1244-47 
(concurring opinion of Kennedy, J.).



-16-

II. The Vagueness Of The Injunction As Upheld By 
The Court Of A ppeals Calls For The Exercise 
Of This Court’s Supervisory Power.

The very terms of the interim injunction entered by the 
district court underscore the difficulties inherent in replac­
ing a satisfied remedial order with some “ looser” stan­
dard of judicial restraint on a school board’s discretion.

In its Spangler decision this Court reversed the court 
of appeals in part because that court’s opinions had left 
the school board without clear guidance as to its obliga­
tions under the then-existing decree. The Court said:

Violation of an injunctive decree such as that issued 
by the District Court in this case can result in pun­
ishment for contempt in the form of either a fine or 
imprisonment. . . . Because of the rightly serious view 
courts have traditionally taken of violations of injunc­
tive orders, and because of the severity of punish­
ment which may be imposed for such violation, such 
orders must in compliance with Rule 65 be specific 
and reasonably detailed.

427 U.S. at 438-39.

In Spangler the uncertainty was due to the court of ap­
peals’ ambiguous resolution of the issue whether a pro­
vision of the injunction should be stricken. Here the uncer­
tainty lies both in the injunction itself and from the gloss 
put on it by the court of appeals.

The heart of the district court’s injunction in this case 
lies in its prohibition against the existence (“ operation” ) 
of any schools that are “ racially identifiable”  as a result 
of Board actions. App. E6, 12. The prohibition is made 
specifically applicable to school construction and abandon­
ment. App. E6, 13. Thus the Board is forbidden from tak­



-17-

ing any action that may result in any school’s becoming 
“ racially identifiable.” 11

It is well recognized that the term “racially identifiable” 
has no fixed meaning in school desegregation cases. See, 
e.g., Morgan v. Nucci, 831 F.2d at 319-20; Price v. Deni­
son Independent School District, 694 F.2d 334, 353-64 (5th 
Cir. 1982). No one has suggested any way of measuring 
racial identifiability except by arithmetic ratios. Yet the 
district court declined to provide the Board with any stan­
dard to guide it, while putting the Board at its peril of 
violating an injunction if some action of the Board were 
subsequently deemed to have crossed some imaginary line 
resulting in “racial identifiability.” Noting the Board’s con­
cern that that term is too indefinite and “ may be con­
strued to mean an affirmative duty broader than that re­
quired by the Equal Protection Clause,” the district court 
brushed the concern aside with the non sequitur that the 
prohibition applies only to Board “ actions” that may re­
sult in racial identifiability (or “ substantial dispropor- 
tionality” ). App. E5.

The court of appeals declined to eliminate the provision, 
or to modify it except to say that it “ should not be inter­
preted to require that racial balance in any school . . . 
necessarily reflect the racial proportions in the district as 
a whole.” App. A21. That qualification of course does not 
address the problem. The question is not whether each 
school must reflect the racial proportions “ in the district 11

11 In forbidding the existence of any racially identifiable school, 
as the provision clearly implies, the prohibition flies in the face 
of the statement in Swann that “ the existence of some small num­
ber of one-race, or virtually one-race, schools within a district is 
not in and of itself the mark of a system that still practices seg­
regation by law.” 402 U.S. at 26.



-18-

as a whole” (for no one would suppose that it must do 
so) but what racial proportions each school must reflect.

Paradoxically, the court of appeals did order the elimina­
tion of Paragraph 4 of the decree, on the ground that it 
was no more than an injunction to obey the law.12 App. 
A18. But an injunction to “ obey the law” is, in this case, 
far more specific in its guidance than the provisions of 
the injunction the court left untouched. Since the “ law” 
applicable is the Fourteenth Amendment, a school board 
enjoined to obey the law knows that the forbidden line 
is intentional discrimination. A conscientious board knows 
how to obey that law, and such an injunction puts it at 
no greater peril than the Fourteenth Amendment itself.

An injunction to “ avoid racial identifiability,”  with no 
standard to say what that means, is as serious an impair­
ment of the autonomy and discretion of a school board 
in managing the educational affairs of a school district as 
an injunction prescribing in detail the student assignment 
plan to be followed. It means that the Board will act at 
its peril whenever it takes any action that may have an 
adverse impact on the racial proportions in any school in 
the district. Rather than conferring freedom on the Board, 
as the district court professed a desire to do, it merely 
places the Board in constant peril of future judicial inter­
vention in the form of contempt proceedings (as well as

12 The paragraph provided:
The duty imposed by the law and by this interim decree is 
the desegregation of schools and the maintenance of that condi­
tion. The defendants are directed to use their- expertise and 
resources to comply with the constitutional requirement of 
equal educational opportunity for all who are entitled to the 
benefits of public education in Denver, Colorado.

A p p . E 6.



-1 9

continued extension of judicial control) and thus greatly 
inhibits the good-faith conduct of the enterprise for which 
the Board has responsibility.

An obvious reason why neither the district court nor 
the court of appeals wished to make the decree more spe­
cific is that, while there is no way to do so except by 
providing arithmetic guidelines, such guidelines, imposed 
after full implementation of a remedial plan, would clear­
ly contravene this Court’s declarations that the Constitu­
tion does not require any prescribed degree of racial bal­
ance in the public schools. But that obstacle is not over­
come by cloaking the required racial balance in the vague 
test of “ racial identifiability,” leaving it to the enjoined 
party to guess what the prescribed degree of racial bal­
ance is. The vagueness only compounds the fundamental 
substantive objection to the injunction.

Thus the vagueness that infects the new supervisory 
decree in this case is more than a departure from the re­
quirement of Rule 65, Fed. R. Civ. P., and this Court’s 
ruling in Spangler. It is a difficulty inherent in any ef­
fort to prescribe permanent or continuing obligations of 
a school board once it is determined that the board need 
no longer adhere to a prescribed remedial plan. This prob­
lem helps make clear why the courts of appeals for the 
First, Fifth, and Ninth Circuits have concluded that once 
a school district has fulfilled the prescribed remedy for 
a constitutional violation a district court should vacate 
prior orders and relinquish its control, leaving the board 
subject only to its constitutional obligation not to engage 
in intentional discrimination on account of race. See 
Morgan v. Nucci, 831 F.2d 313; United States v. Over- 
ton, 834 F.2d 1171 (5th Cir. 1987); Spangler v. Pasadena 
City Bd. o f Educ., 611 F.2d 1239.



■20-

The fundamental issue raised by the Tenth Circuit’s 
decision in this case, as in its decision in the Dowell case, 
is whether the measure of a school district’s obligation 
to maintain a unitary system, after completion of a rem­
edy for eliminating a previously discriminatory student as­
signment system, is discriminatory intent or maintenance 
of some prescribed (or unprescribed) degree of racial bal­
ance, regardless of other educational considerations. Cer­
tiorari should be granted in this case, in addition to the 
Dowell case, not only because the issues in the two cases 
are closely related but also because, if the example set 
by this case is permitted to stand, school boards may be 
subjected to the constraints of judicial supervision indefi­
nitely and long after full compliance with a comprehensive 
remedial plan has been maintained for many years.

The petition for a writ of certiorari should be granted.
CONCLUSION

Respectfully submitted,

M ic h a e l  H. Ja c k so n  
Semple & Jackson 
The Chancery Building 
1120 Lincoln Street 
Suite 1300
Denver, Colorado 80203 
(303) 595-0941

Neal Gerber & Eisenberg 
208 South LaSalle Street 
Suite 900
Chicago, Illinois 60604 
(312) 269-8000

P h il  C. N e a l  
Counsel of Record

Attorneys fo r  Petitioners



APPENDICES



INDEX TO APPENDICES

Page

A— Opinion of the United States Court of Appeals
for the Tenth Circuit, January 30, 1990 ___  A1

B— Memorandum Opinion and Order of the United 
States District Court for the District of Colorado,
June 3, 1985 ......................................................  B1

C— Order for Further Proceedings of the United 
States District Court for the District of Colorado, 
October, 1985 ....................................................  C l

D— Memorandum Opinion and Order of the United 
States District Court for the District of Colorado, 
February 25, 1987 ............................................. D1

E— Memorandum Opinion and Order of the United 
States District Court for the District of Colorado, 
October 6, 1987 ................................................. E l



A1

APPENDIX A

[January 30, 1990]
PUBLISH

UNITED STATES COURT OF APPEALS 
TENTH CIRCUIT

Nos. 85-2814 & 87-2634

W ILFR E D  KEYES, et al.,
Plaintiffs-Appellees,

and

CONGRESS OF HISPANIC EDUCATORS, et al.,
Plaintiffs/Intervenors-Appellees,

v.

SCHOOL DISTRICT NO. 1, DEN VER, COLORADO, et al.,
Defendants-Appellants.

Appeal from the United States District Court 
for the District of Colorado 

(D.C. Civil No. C-1499)

Phil C. Neal of Neal, Gerber, Eisenberg & Lurie, Chicago, 
Illinois (Michael H. Jackson of Semple & Jackson, Denver, 
Colorado, with him on the brief) for Defendants-Appellants.



A2

Gordon G. Greiner of Holland & Hart, Denver, Colorado, 
for Plaintiffs-Appellees (James M. Nabrit, III, New York, 
New York, with him on the brief for Plaintiffs-Appellees; 
Norma V. Cantu of Mexican American Legal Defense and 
Educational Fund, Inc., San Antonio, Texas, and Peter 
Roos, San Francisco, California, with him on the brief for 
Plaintiffs/Intervenors-Appellees).
Wm. Bradford Reynolds, Assistant Attorney General, 
Roger Clegg, Deputy Assistant Attorney General, and 
David K. Flynn, Attorney, Department of Justice, Wash­
ington, D.C., filed a brief on behalf of the United States 
as amicus curiae.

Before LOGAN, SETH and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

This is yet another chapter in the slow and acrimonious 
desegregation of Denver Public School District No. 1. In 
the district court, the school district moved for a declara­
tion that it had attained unitary status and for the ter­
mination of this case and of the court’s continuing jurisdic­
tion over operation of the schools. The court denied both 
requests and later ordered the district to prepare a plan 
for further desegregation of certain schools and programs 
that it believed were preventing the district from attain­
ing unitary status. Case number 85-2814 is the district’s 
appeal from the court’s denial of its motion for termina­
tion of continuing jurisdiction and from the court’s later 
order. Case number 87-2634 is the district’s appeal from 
the court’s order approving the district’s response but re­
taining jurisdiction, and its subsequent “ interim decree” 
in which the court eliminated reporting requirements and



A3

mandated certain general desegregation actions. The court 
styled its “ interim decree”  an intermediate step towards 
a final, permanent injunction.

I
This case began in 1969 when plaintiffs, parents of chil­

dren then attending the Denver public schools, sought an 
injunction against the school district’s rescission of a pro­
posed voluntary desegregation plan. Since that time the 
parties have made many trips to the courthouse, resulting 
in numerous opinions, including two by this court and one 
by the full Supreme Court of the United States.1 In the 
instant appeals we are concerned primarily with the dis­
trict court’s actions in Keyes X IV  through Keyes XVII. 1

1 See Keyes v. School Dist. No. 1, 303 F. Supp. 279 (D. Colo.
1969) (Keyes I), modified, 303 F. Supp. 289 (D. Colo. 1969) (Keyes 
II), order reinstated, 396 U.S. 1215 (1969) (Brennan, J. in chambers) 
(Keyes III); Keyes v. School Dist. No. 1, 313 F. Supp. 61 (D. Colo.
1970) (Keyes IV); Keyes v. School Dist. No. 1, 313 F. Supp. 90 
(D. Colo. 1970) (Keyes V), ajfd in part and rav’d in part,, 445 F.2d 
990 (10th Cir. 1971) (Keyes VI), cert, granted, 404 U.S. 1036 (1972) 
and cert, denied sub. nom School Dist. No. 1 v. Keyes, 413 U.S. 
921 (1973), modified and remanded, 413 U.S. 189 (1973) (Keyes 
VII), on remand, 368 F. Supp. 207 (D. Colo. 1973) (Keyes VIII) 
and 380 F. Supp. 673 (D. Colo. 1974) (Keyes IX), ajfd  in part and 
rev’d in part, 521 F.2d 465 (10th Cir. 1975) (Keyes X), cert, denied, 
423 U.S. 1066 (1976); Keyes v. School Dist. No. 1, 474 F. Supp. 
1265 (D. Colo. 1979) (Keyes XI); Keyes v. School Dist. No. 1, 540 
F. Supp. 399 (D. Colo. 1982) (Keyes XII); Keyes v. School Dist. 
No. 1, 576 F. Supp. 1503 (D. Colo. 1983) (Keyes XIII); Keyes v. 
School Dist. No. 1, 609 F. Supp. 1491 (D. Colo. 1985) (Keyes XIV); 
I R. Tab 29, Keyes v. School Dist. No. 1, No. C-1499 (D. Colo. 
Oct. 29, 1985) (Keyes XV) (Order for Further Proceedings); Keyes 
v. School Dist. No. 1, 653 F. Supp. 1536 (D. Colo. 1987) (Keyes 
XVI); Keyes v. School Dist. No. 1, 670 F. Supp. 1513 (D. Colo. 
1987) (Keyes XVII).



A4

From 1974, see Keyes IX, 380 F. Supp. 673, to the pres­
ent the school district has operated under a court-ordered 
desegregation plan, which occasionally has been modified 
with the district court’s approval. See, e.g., Keyes XII, 
540 F. Supp. at 404; Keyes XI, 474 F. Supp. at 1276. In 
1984 the district moved for an order declaring the Denver 
schools unitary, dissolving the injunction as it related to 
student assignments, and terminating the court’s jurisdic­
tion in the case. Plaintiffs opposed the motion and moved 
for an order directing the school district to prepare and 
submit numerous plans and policies to remedy what they 
considered shortcomings in the district’s desegregation ef­
forts. The court held a full hearing on the motions and 
later filed an opinion denying the district’s motion, but 
refusing to rule on plaintiffs’ motion pending further nego­
tiations between the parties. Keyes XIV, 609 F. Supp. 
at 1521-22.

In its opinion, the court rejected the district’s argument, 
id. at 1498, that compliance for an extended period of time 
with the 1974 court-approved desegregation plan, as modi­
fied in 1976, entitled the district to a declaration of uni­
tariness. The court reasoned that the district’s argument 
hinged on the thesis that the “ 1974 Final Judgment and 
Decree, as modified in 1976, was a complete remedy for 
all of the constitutional violations found in this case.”  Id. 
However, the court had indicated at the time of its 1976 
order that further remedial changes would be necessary 
in the future. Id. at 1500.

The court supported its factual finding that the district 
was not unitary by placing weight on the following factors: 
its recognition in 1979 and the school board’s recognition 
in 1980 that the district was not yet unitary, id. at 1501; 
the board’s uncooperative attitude in recent years, id. at 
1505; the board’s recognition in one of its resolutions that



A5

compliance with the court-approved plan was insufficient, 
in itself, to desegregate the district’s schools, id. at 1506; 
the increasing resegregation at three schools, id. at 1507; 
the district’s misinterpretation of the faculty/staff assign­
ment policy so that the fewest number of minority teach­
ers would be placed in previously predominantly Anglo 
schools, id. at 1509-12; and the district’s “ hardship trans­
fer”  policy, which the court found was implemented with 
“ a lack of concern about the possibility of misuse and a 
lack of monitoring of the effects of the policy,” id. at 1514. 
In addition, the court believed that the district had not 
given adequate assurances that resegregation would not 
occur if the court terminated jurisdiction, id. at 1515, and 
that in any event, even if the board affirmatively tried 
to prevent resegregation, it would be compelled to com­
ply with Colo. Const. Art. IX § 8 which outlaws “ forced 
busing,”  compliance with which certainly would cause dras­
tic resegregation of Denver’s schools. Keyes XIV, 609 F. 
Supp. at 1515. Finally, the court noted that mere statistics 
indicating general integration in student assignments were 
insufficient to compel a finding of unitariness, id. at 1516, 
and indicated that the board had neither the understand­
ing of the law nor the will to contravene community sen­
timent against busing that would be necessary for the 
district to achieve and maintain a unitary school system. 
Id. at 1519, 1520.

Following this ruling and the parties’ failure to negotiate 
a settlement of their differences, the court ordered the 
school district to prepare and submit a plan “ for achiev­
ing unitary status . . . and to provide reasonable assurance 
that future Board policies and practices will not cause re­
segregation.”  Keyes XV, I R. Tab 29 at 2. Specifically, 
the court ordered the board to address four problem areas:
(1) three elementary schools, Barrett, Harrington, and Mit­



A6

chell, that were racially identifiable as minority schools;
(2) the district’s hardship transfer policy; (3) the assign­
ment of faculty; and (4) plans to implement board Resolu­
tion 2233, which states the board’s commitment to opera­
tion of a unitary school system. Id. at 2-3. It is from this 
order and the court’s ruling in Keyes XIV  that the school 
district appeals in case number 85-2814.

In February 1987, the district court noted that the board 
had responded positively to its order in Keyes XV, but 
that the plaintiffs still had ample reason for their concerns 
about the district’s ability or willingness to achieve and 
maintain a unitary system. Keyes XVI, 653 F. Supp. at 
1539-40. Nevertheless, the court cited the community’s in­
terest in controlling its school district and decided “ that 
it is time to relax the degree of court control over the 
Denver Public Schools.”  Id. at 1540. At the same time, 
the court concluded that a permanent injunction should 
be constructed, in part because one board’s resolutions 
could not bind a subsequent board, and the constitutional 
duty was to maintain, not simply achieve, a desegregated, 
unitary school system. Id. at 1541-42.

Later in 1987, the district court issued an “ interim de­
cree”  that eliminated reporting requirements and allowed 
the school district to make changes in the desegregation 
plan without prior court approval. Keyes XVII, 670 F. 
Supp. at 1515. The court attempted to fashion an injunc­
tion sufficiently specific to meet the requirements of Fed. 
R. Civ. P. 65(d), while at the same time allowing the board 
to operate “ under general remedial standards, rather than 
specific judicial directives.”  Id. The court summarized its 
order as enjoining “governmental action which results in 
racially identifiable schools,”  id. at 1516, and said its de­
cree was a step towards a final decree that would termi­
nate the court’s supervisory jurisdiction and the litigation’s



remedial phase. Id. In case number 87-2634, the district 
appeals the court’s February 1987 order and its later “ in­
terim decree.”

II
Plaintiffs assert, as an initial matter, that this court does 

not have jurisdiction over case number 85-2814. Specifical­
ly, plaintiffs argue that subsequent orders of the district 
court have superseded Keyes XIV, and thus any appeal 
from the decision is moot. In the alternative, they con­
tend that the court’s “ refusal to issue a declaratory judg­
ment that a defendant has complied with an injunction,” 
see Joint Brief of Appellees at 1, is not an appealable in­
junctive order under 28 U.S.C. § 1292(a)(1), the school 
district’s asserted basis for appellate jurisdiction. In ad­
dition, plaintiffs argue that the appeal from Keyes XV, 
the court’s order for the district to submit certain deseg­
regation plans, also is mooted by the interim decree and 
was not an injunctive order under 28 U.S.C. § 1292(a)(1).

We hold that the school district’s appeal from Keyes 
XIV  is not moot and that we have jurisdiction to consider 
the appeal. A case becomes moot when the controversy 
between the parties no longer is “ live” or when the par­
ties have no cognizable interest in the appeal’s outcome. 
Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam); 
Wiley v. NCAA, 612 F.2d 473, 475 (10th Cir. 1979) (en 
banc), cert, denied, 446 U.S. 943 (1980). Here, however, 
a decision favorable to the school district, reversing the 
district court’s ruling that the school system was not uni­
tary, or even remanding the question for further consid­
eration, would give the district some relief from the court’s 
order. The court’s later orders do not supersede Keyes 
XIV, but rather emanate from and supplement that opin­



A8

ion’s ruling that the school district is not unitary. Cf Bat­
tle v. Anderson, 708 F.2d 1523, 1527 (10th Cir. 1983), cert, 
dismissed sub. nom. Meachum v. Battle, 465 U.S. 1014 
(1984). The appeal from Keyes X IV  is not moot.

In addition, we have jurisdiction over the appeal from 
Keyes X IV  because the denial of the district’s motion for 
a declaration of unitariness constitutes an interlocutory or­
der “ continuing” an injunction. See 28 U.S.C. § 1292(aXl). 
We agree with plaintiffs that denial of the district’s motion 
did not “ modify”  any prior injunctive order of the court, 
but the court’s order plainly resulted in a continuation of 
the injunctive decree mandating desegregation of the Den­
ver schools. Because we reject plaintiffs’ characterization 
of the court’s order as a “ refusal to issue a declaratory 
judgment,”  we need not address whether the district has 
made a sufficient showing to appeal the denial of an in­
junctive order. See Stringfellow v. Concerned Neighbors 
in Action, 480 U.S. 370, 379 (1987).

We hold, however, that the appeal from Keyes X V  is 
moot. That order merely required the district to submit 
certain plans to the court, and the district fully complied 
long ago. Because the district has no legal interest in our 
disposition of the appeal from that order, and because no 
decision by this court could grant the district any effec­
tual relief from the order, Keyes X V  is moot and the ap­
peal from it dismissed. See International Union, UAW  
v. Telex Computer Prods., Inc., 816 F.2d 519, 522 (10th 
Cir. 1987); Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.
1986). The other part of the appeal in case number 87- 
2634, dealing with Keyes XVITs “ interim decree,” is prop­
erly before us, of course, as it modified the court’s earlier 
injunction. 28 U.S.C. § 1292(a)(1).



A9

III
The school district’s contentions in No. 85-2814 can be 

summarized as follows: (1) because the district’s long-term 
compliance with the 1974 decree, as subsequently modi­
fied, has remedied any constitutional violation, the court 
now must terminate its jurisdiction over student assign­
ments; (2) the district court’s findings, which are not chal­
lenged on appeal, that the school system is not unitary 
regarding faculty assignments and hardship transfer policy, 
do not prevent student assignments from being unitary;
(3) because there is no constitutional right to any particu­
lar racial balance in a school’s student body, the district 
court erred in focusing on the racial identity of three 
elementary schools and in demanding future maintenance 
of racial balance; (4) concerns about the present or future 
segregative effects of board actions (especially implemen­
tation of a neighborhood school policy) are irrelevant to 
a determination of unitariness because discriminatory im­
pact does not violate the Constitution nor does it justify 
the court’s continued jurisdiction; and (5) there is no evi­
dence that this or future boards will act with segregative 
intent. The United States, as amicus curiae, generally agrees 
with the district, and argues that a court must terminate 
jurisdiction when it finds the district to be unitary, a find­
ing it must make when the district has in good faith fully 
implemented a court-approved desegregation plan.

A
We begin at the beginning, with the proposition announced 

in Brown v. Board o f Education, 347 U.S. 483, 495 (1954) 
{Brown I), that a state violates the Equal Protection Clause 
of the Fourteenth Amendment when it intentionally segre­
gates or tolerates the segregation of public school students



A10

on the basis of race. Where no statutory dual system ever 
existed, such as in Denver, a plaintiff proves a violation 
of the Fourteenth Amendment by showing the existence 
of segregated schools and the maintenance of that segre­
gation by intentional state action. Keyes VII, 413 U.S. 
at 198. The school district does not remedy these viola­
tions by simply halting its intentionally discriminatory acts 
and adopting racially neutral attendance policies. Rather, 
as the Supreme Court later held, the affirmative constitu­
tional duty to desegregate expressed in Brown v. Board of 
Education, 349 U.S. 294 (1955) (Brown II), requires school 
boards to dismantle their dual school systems. Green v. 
County School Bd. o f New Kent County, 391 U.S. 430, 
437-38 (1968); Swann v. Charlotte-Mecklenburg Bd. o f 
Education, 402 U.S. 1, 28 (1971); see also Keyes VII, 413 
U.S. at 222-23 (Powell, J., concurring and dissenting). The 
Supreme Court has noted that the primary duty to deseg­
regate and eliminate racial discrimination in public educa­
tion rests with the local school boards. Brown. II, 349 U.S. 
at 299. In fact, the school board has an affirmative duty 
under the Constitution to remedy past de jure discrimina­
tion and eliminate its effects, and “ [ejach instance of a 
failure or refusal to fulfill this affirmative duty continues 
the violation of the Fourteenth Amendment.”  Columbus 
Bd. o f Education v. Penick, 443 U.S. 449, 459 (1979). It 
is irrelevant that the school district does not intend to 
perpetuate the prior intentional segregation because “ the 
measure of the post-Brown I  conduct of a school board 
under an unsatisfied duty to liquidate a school system is 
the effectiveness, not the purpose, of actions in decreas­
ing or increasing the segregation caused by the dual sys­
tem.”  Dayton Bd. o f Education v. Brinkman, 443 U.S. 
526, 538 (1979) (Dayton II).

When the school district defaults on its obligation to 
stop segregative acts and remedy their effects, a federal



A ll

court in a properly-instituted case must order a remedy, 
and in so doing it may employ its full powers as a court 
of equity. Milliken v. Bradley, 433 U.S. 267, 281 (1977) 
(.Milliken II); Swann, 402 U.S. at 15. The court’s remedial 
authority, however, is not plenary but extends only to the 
breadth of the violation proven. Milliken II, 433 U.S. at 
282. A valid desegregation remedy must meet three re­
quirements: (1) it must be tailored to the nature and scope 
of the constitutional violation; (2) it must be designed to 
restore the discrimination victims to the position they would 
have occupied had the discrimination not occurred; and 
(3) it must take into account the interest of state and local 
authorities in themselves managing the public schools. Id. 
at 280-81. But, within these parameters, a district court 
may order remedial programs even in areas in which in­
tentional discrimination has not existed, if it concludes that 
the remedy is necessary to “ treat the condition that of­
fends the Constitution,” and that “ the constitutional viola­
tion caused the condition for which remedial programs are 
mandated.”  Id. at 282, 286 n.17 & 287 (emphasis added); 
Keyes VII, 413 U.S. at 205 (defining de jure segregation 
as “ a current condition of segregation resulting from in­
tentional state action” ) (emphasis added).

Because desegregation remedial orders are equitable in 
nature, we review them only for abuses of discretion. 
Wright v. Council o f Emporia, 407 U.S. 451, 470-71 (1972); 
Diaz v. San Jose Unified School Disk, 861 F.2d 591, 595 
(9th Cir. 1988). Thus, so long as a remedy is tailored to 
the violation, it need not be the least restrictive of the 
available options. Swann, 402 U.S. at 31 (appellate court 
will not overturn remedy if it is “ reasonable, feasible and 
workable” ); United States v. Yonkers Bd. o f Education, 
837 F.2d 1181, 1236 (2d Cir. 1987), cert, denied, 108 S. 
Ct. 2821 (1988); see also United States v. Paradise, 480 
U.S. 149, 184 (1987) (plurality opinion). Of course, the



A12

court may modify even a final decree if changing circum­
stances indicate the need for a modification. Pasadena City 
Bd. o f Education v. Spangler, 427 U.S. 424, 437 (1976); 
Dowell ex rel. Dowell v. Board o f Education o f Oklahoma 
City Pub. Schools, 795 F.2d 1516, 1520-21 (10th Cir.)
(Dowell I), cert, denied, 479 U.S. 938 (1986).

Once a school district has eliminated all intentional racial 
discrimination, and eradicated all effects of such discrimi­
nation, the court may declare it unitary. Green, 391 U.S. 
at 439-40; Brown II, 349 U.S. at 301. Although the Su­
preme Court has not defined precisely what facts or factors 
make a district unitary, a starting point is to evaluate the 
factors that make a system segregated. In the context 
of a unitariness decision, these factors include elimination 
of invidious discrimination in transportation of students, 
integration of faculty and staff, equality of financial sup­
port given to extracurricular activities at different schools 
and integration of those activities, nondiscriminatory con­
struction and location of new schools, and assignment of 
students so that no school is considered a white or black 
school. E.g., Swann, 402 U.S. at 18-19; United States v. 
Montgomery County Bd. o f Education, 395 U.S. 225, 231- 
32 (1969). This court has defined “ unitary” as the elimina­
tion of invidious discrimination and the performance of 
every reasonable effort to eliminate the various effects 
of past discrimination. Dowell ex rel. Dowell v. Board o f 
Education, Oklahoma City Pub. Schools, No. 88-1067, slip 
op. at 19 & n.15 (10th Cir. Oct. 7, 1989) (Dowell II); Brown 
v. Board o f Education, No. 87-1668, slip op. at 16 (10th 
Cir. Dec. 11, 1989). In so defining “unitariness,” we recog­
nize that racial balance in the schools is no more the goal 
to be attained than is racial imbalance the evil to be rem­
edied. See Spangler, 427 U.S. at 434; Swann, 402 U.S. 
at 24. Therefore, a court is without power to order con-



A13

stant adjustments in the assignment of students, merely 
to maintain a certain racial balance. Spangler, 427 U.S. 
at 436-37. But, we also recognize that when a school board 
has a duty to liquidate a dual system, its conduct is mea­
sured by “ the effectiveness, not the purpose, of [its] ac­
tions in decreasing or increasing segregation caused by 
the dual system.”  Dayton II, 443 U.S. at 538. The exis­
tence of racially identifiable schools is strong evidence that 
the effects of de jure segregation have not been eliminated. 
Swann, 402 U.S. at 26.

Long-term compliance with a desegregation plan that 
is complete by its own design and does not contemplate 
later judicial reappraisal entitles the school district to a 
declaration of unitariness. Spangler, 427 U.S. at 435-37; 
see Spangler v. Pasadena City Bd. o f Education, 611 F.2d 
1239, 1243, 1244 (9th Cir. 1979) (Kennedy, J., concurring) 
(because desegregation plan wTas “ a full and complete rem­
edy,”  compliance with plan for nine years, in light of na­
ture and degree of violation, sufficient to make district 
unitary). Whether the plan was in fact a complete remedy 
for the violation requires both an examination of the orig­
inal violation, and, as the district court noted here, an 
examination of the actual effects of the plan. Keyes XIV, 
609 F. Supp. at 1506; cf. Dayton II, 443 U.S. at 538. Thus, 
compliance with even a court-approved desegregation plan, 
by itself and without proof of the executed plan’s inten­
tion and effect, does not make a district unitary. Pitts 
v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985); United 
States v. Texas Educ. Agency, 647 F.2d 504, 508 (5th Cir. 
Unit A 1981). Of course, while a district is not unitary, 
the court must maintain supervisory jurisdiction and may 
require prior approval of various board actions. Swann, 
402 U.S. at 30; Brown II, 349 U.S. at 301 (during transi­
tion to unitary system, court will retain jurisdiction). Dur­



A14

ing this “pre-unitariness” period the board bears a “  ‘heavy 
burden’ of showing that actions that increased or continued 
the effects of the dual system serve important and legiti­
mate ends.” Dayton II, 443 U.S. at 538 (citation omitted).

B
The district court’s finding that the school district had 

not achieved unitary status is a factual one which we re­
view under a clearly erroneous standard. Brown, slip op. 
at 15; see also id., dissenting slip op. at 3, 52 (Baldock, 
J., dissenting). Applying the principles discussed above 
and this standard, we cannot conclude that the district 
court was clearly erroneous in holding that the school dis­
trict’s pupil assignment policies were nonunitary.

As an initial matter, we agree with the school district that 
it may be declared unitary in certain aspects, even though 
other aspects remain “ nonunitary.”  See, e.g., Spangler, 
427 U.S. at 436-37; id. at 442 (Marshall, J., dissenting); 
Morgan v. Nucci, 831 F.2d 313, 318 (1st Cir. 1987). Just 
as a remedy must be tailored to fit the scope of the viola­
tion, Milliken II, 433 U.S. at 280-81, 282; Dayton I, 433 
U.S. at 420, so must the court relinquish supervisory con­
trol over a school district’s attendance policies and deci­
sions when the need for that close supervision no longer 
exists. See Jackson County, 794 F.2d at 1543 (“ continuing 
involvement,” though not necessarily permanent injunction, 
must terminate when no more constitutional violations ex­
ist to justify continuing supervision). But even so, the 
district makes virtually no argument here that the district 
court was clearly erroneous in rejecting the district’s evi­
dence and concluding that the district had failed to prove 
that existing resegregation resulted from demographic 
changes and not from actions of the board. See Keyes



A15

XIV, 609 F. Supp. at 1507-08. Our independent review of 
the record reveals nothing that would compel us to over­
turn the court’s refusal to find convincing the district’s 
evidence. Before the declaration of unitariness it is the 
district’s burden to prove resegregation has resulted from 
demographic changes and not from actions of the board. 
See Dayton II, 443 U.S. at 538.

Instead of arguing that the district court was wrong on 
the facts, the district argues that the court was wrong 
on the law. In one respect, we agree. As noted above, 
a district may be declared unitary in some respects and 
not others. The district court appears to have held to the 
contrary, see Keyes XIV, 609 F. Supp. at 1508, 1517, and 
if that was its intention, it erred. But the error is harm­
less because the record evidence adequately supports the 
court’s specific finding that student assignments are non- 
unitary.2

We reject the district’s other argument which, in essence, 
is that as a matter of law three racially identifiable ele­
mentary schools out of about eighty cannot prevent a 
school district from attaining unitary status.3 A few racial­
ly identifiable schools do not, as a matter of course, pre­
vent a district from being unitary. Swann, 402 U.S. at

2 The district court viewed the 1974 desegregation plan, as modi­
fied in 1976, as one that was not intended to be complete in itself; 
rather, the court and the district had “ the expectation that changes 
would be required in future years.”  Keyes XIV, 609 F. Supp. at 
1506. That is also our reading of the record and the history of 
the litigation. Thus, in this respect this case is unlike Spangler, 
which the district relies upon so heavily. See Spangler, 611 F.2d 
at 1243.
3 The district does not here dispute the standard employed by 
the district court in determining whether a school is “ racially iden­
tifiable.”



A16

26. Yet, the existence of such schools, especially when 
they once have been eliminated and then resurface as a 
result of board action, is strong evidence that segrega­
tion and its effects have not been eradicated. See Colum­
bus Bd. o f Education v. Penick, 443 U.S. 449, 460-61 
(1979). Even if only a few of many schools are racially 
identifiable, the district has the burden of showing that 
such schools are nondiscriminatory and that their composi­
tion is not the result of present or past discrimination.4 
Dayton II, 443 U.S. at 538; Swann, 402 U.S. at 26. The 
district court found that the district had not met its bur­
den. The district argues that all it had to prove was that 
the resegregation was not the result of new, intentional 
segregation. As explained above, this proof is insufficient.

The district court believed that the district was both 
without the ability and without the will to ensure that 
the effects of prior segregation did not resurface. Keyes 
XVII, 670 F. Supp. at 1515; Keyes XVI, 653 F. Supp. at 
1540; Keyes XIV, 609 F. Supp. at 1515, 1520. We consider 
this a fact-finding of the district court to which we must 
give deference. See Penick, 443 U.S. at 470 (Stewart, J., 
concurring in judgment). Thus, we must uphold the dis­
trict court’s order retaining supervisory jurisdiction over 
the Denver public schools.

4 That the number of racially identifiable schools here—three out 
of about eighty elementary schools—is a smaller percentage than 
that found to be constitutionally acceptable in Spangler, where five 
of thirty-two schools were racially identifiable, is only marginally 
relevant. The unitariness determination was and is a fact-bound 
decision, and when unitariness is achieved will differ with each 
different school district.



A17

IV
We turn now to No. 87-2634, the district’s appeal of the 

district court’s “ interim decree” set out in Keyes XVII, 
670 F. Supp. at 1516-17. That modification of the court’s 
prior injunction was intended to relax the court’s control 
and allow the school district to make changes without prior 
approval. Id. at 1515. The interim decree attempted to 
strike a balance between allowing the district to regain 
control of student assignments while also ensuring that 
the board would not adopt a student attendance policy 
discriminatory in practice and impact. See Penick, 443 
U.S. at 464, 465 n.13 (irrelevant that present acts have 
little incremental segregative impact if they, in combina­
tion with previous segregative acts, have natural and fore­
seeable consequence of disparate impact on minorities).

Some of the complaints about the interim decree relate 
to the district’s contention that we should override the 
district court’s finding of nonunitariness, at least as to 
pupil assignment. But the district also asserts that the 
interim injunction is indefinite, vague, and in violation of 
Fed. R. Civ. P. 65(d). That rule requires that an injunc­
tion be reasonably specific in identifying what acts are 
prohibited or required, both to give notice to the defen­
dant of what is prohibited, and to guide an appellate court 
in reviewing the defendant’s compliance or noncompliance 
with the injunction. Schmidt v. Lessard, 414 U.S. 473, 
476-77 (1974); Daniels v. Woodbury County, 742 F.2d 1128, 
1134 (8th Cir. 1984). An injunction “too vague to be under­
stood” violates the rule, International Longshoremen’s 
A ss’n v. Philadelphia Marine Trade A ss’n, 389 U.S. 64, 
76 (1967), and, generally, injunctions simply requiring the 
defendant to obey the law are too vague. E.g., City o f 
Mishawaka v. American Elec. Power Co., 616 F.2d 976, 
991 & n.18 (7th Cir. 1980), cert, denied, 449 U.S. 1096 
(1981).



Paragraph 4 of the interim decree does no more than 
require the district to obey the law, and therefore must 
be stricken.5 Payne v. Travenol Labs., Inc., 565 F.2d 895,

5 The interim decree, in its entirety, states:
ORDERED AND ADJUDGED:
1. The defendants, their agents, officers, employees and suc­

cessors and all those in active concert and participation with 
them, are permanently enjoined from discriminating on the 
basis of race, color or ethnicity in the operation of the school 
system. They shall continue to take action necessary to dis­
establish all school segregation, eliminate the effects of the 
former dual system and prevent resegregation.

2. The defendants are enjoined from operating schools or 
programs which are racially identifiable as a result of their 
actions. The Board is not required to maintain the current stu­
dent assignment plan of attendance zones, pairings, magnet 
schools or programs, satellite zones and grade-level structures. 
Before making any changes, the Board must consider specific 
data showing the effect of such changes on the projected racial/ 
ethnic composition of the student enrollment in any school af­
fected by the proposed change. The Board must act to assure 
that such changes will not serve to reestablish a dual school 
system.

3. The constraints in paragraph 2 are applicable to future 
school construction and abandonment.

4. The duty imposed by the law and by this interim decree 
is the desegregation of schools and the maintenance of that 
condition. The defendants are directed to use their expertise 
and resources to comply with the constitutional requirement 
of equal education opportunity for all who are entitled to the 
benefits of public education in Denver, Colorado.

5. The District retains the authority to initiate transfers for 
administrative reasons, including special education, bilingual 
education and programs to enhance voluntary integration. The 
defendants shall maintain an established policy to prevent the 
frustration, hindrance or avoidance of a District student assign­
ment plan through parent initiated transfers and shall use ad­
ministrative procedures to investigate, validate and authorize 
transfer requests using criteria established by the Board. If 
transfers are sought on grounds of ‘hardship’ , race, color or 
ethnicity will not be a valid basis upon which to demonstrate

(Footnote continued on following page)



A19

5 continued,
‘hardship’ . The defendants shall keep records of all transfers, 
the reasons therefor, the race, color or ethnicity of the stu­
dent, and of the effects on the population of the transferee 
and transferor schools.

6. No student shall be segregated or discriminated against 
on account of race, color or ethnicity in any service, facility, 
activity, or program (including extracurricular activities) con­
ducted or sponsored by the school in which he or she is en­
rolled. All school use or school-sponsored use of athletic fields, 
meeting rooms, and all other school related services, facilities 
and activities, and programs such as commencement exercises 
and parent-teacher meetings which are open to persons other 
than enrolled students, shall be open to all persons without 
regard to race, color or ethnicity. The District shall provide 
its resources, services and facilities in an equitable, nondiscrim- 
inatory manner.

7. The defendants shall maintain programs and policies de­
signed to identify and remedy the effects of past racial seg­
regation.

8. The defendants shall provide the transportation services 
necessary to satisfy the requirements of this interim decree 
notwithstanding the provisions of Article IX, Section 8 of the 
Colorado Constitution.

9(A). The principals, teachers, teacher-aides and other staff 
who work directly with children at a school shall be so as­
signed that in no case will the racial or ethnic composition of 
a staff indicate that a school is intended for minority students 
or anglo students.

(B) . Staff members who work directly with children, and 
professional staff who work on the administrative level will 
be hired, assigned, promoted, paid, demoted, dismissed, and 
otherwise treated without regard to race, color or ethnicity.

(C) . Defendants are required to use an effective affirmative 
action plan for the hiring of minority teachers, staff and ad­
ministrators with the goal of attaining a proportion which is 
consistent with the available labor force; the plan shall con­
tain yearly timetables and a reasonable target date for the 
attainment of the affirmative action goals.

10. The District will continue to implement the provisions 
of the program for limited English proficiency students here­
tofore approved by the Court in the Language Rights Consent

(Footnote continued on following- page)



A20

897-98, 900 (5th Cir.), cert, denied, 439 U.S. 835 (1978). 
The same would be true of paragraphs 1 and 7, except 
that such provisions must be understood as continuing in 
effect the prior injunction which placed upon the district 
a continuing duty to disestablish a formerly dual system. 
Given the court’s finding that unitariness has not yet been 
achieved, even in pupil assignments, such continuing pro­
hibitions, though stated in general terms, are not objec­
tionable. We construe the statement of the district’s duties 
to take action to disestablish and eliminate the effects of 
past racial segregation as an order that will terminate 
once the district is declared unitary, see Swann, 402 U.S. 
at 32. It would be better to say so explicitly, but we do 
not require that statement be placed into what is specifi­
cally designated an “ interim” decree.

The prohibition on enforcement of Colorado’s anti-busing 
constitutional provision, in paragraph 8, may be unneces­
sary, but given the district’s admission that the anti­
busing amendment is unconstitutional it cannot complain. 
Further, this prohibition gives the district legal author- * 11

5 continued
Decree of August 17, 1984. Nothing in this interim decree shall 
modify or affect the Language Rights Consent Decree of Au­
gust 17, 1984, and the prior orders entered in this case relating 
thereto shall remain in full force and effect.

11. It is further provided that this interim decree is binding 
upon the defendant Superintendent of Schools, the defendant 
School Board, its members, agents, servants, employees, pres­
ent and future, and upon those persons in active concert or 
participation with them who receive actual notice of this in­
terim decree by personal service or otherwise.

12. This interim decree, except as provided herein, shall 
supersede all prior injunctive orders and shall control these 
proceedings until the entry of a final permanent injunction.

Keyes XVII, 670 F. Supp. at 1516-17.



A21

ity to disregard the Colorado provision. See Swann, 402 
U.S. at 45.

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, as there is no constitutional right to any partic­
ular level of integration. Spangler, 427 U.S. at 436-37. On 
remand, the district court should make this clear.

Other than those discussed above, we have no objection 
to the district court’s decree. It is a commendable attempt 
to give the board more freedom to act within the confines 
of the law. We recognize the difficulty in drafting an in­
junction that will allow the district maximum latitude in 
formulating policies, while at the same time making the 
injunction sufficiently specific. The degree of specificity 
necessary may be determined in light of the difficult sub­
ject matter. Calvin Klein Cosmetics Corp. v. Parfums de 
Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987); Common 
Cause v. NRC, 674 F.2d 921, 927 (D.C. Cir. 1982). Should 
contempt proceedings ever be necessary, of course, any 
ambiguity in the injunction will inhere to the district’s 
benefit. See Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir. 
1971); see also United States v. Holtzrnan, 762 F.2d 720, 
726 (9th Cir. 1985) (injunctions not to be set aside unless 
“ so vague that they have no reasonably specific meaning,” 
but “ all ambiguities or inconsistencies are resolved in 
favor of the person subject to the injunction” ).

We understand the school district’s struggle to be free 
from judicial supervision and control. We also recognize 
the district’s frustration with not knowing its precise obli­
gations under the Constitution. At the same time, it is 
the district court’s duty, and ours, to enforce the Con­
stitution and protect the rights it grants, including the



A22

right of each public school student to attend a school 
where intentional segregation is banished and its effects 
remedied. We recognize that the showings required to ob­
tain unitariness are difficult to make. But when the dis­
trict makes those showings is entirely within its own con­
trol. Although the desegregation “ vehicle can carry only 
a limited amount of baggage,”  Swann, 402 U.S. at 22, 
in Denver the district has not accomplished all desegrega­
tion possible and practical.

The cause is remanded for the reconsideration of lan­
guage changes in the interim decree, as set out in this 
opinion. In all other respects, it is AFFIRMED.



B1

APPENDIX B

[June 3, 1985]
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO
Civil Action No. C-1499 
WILFRED KEYES, et al.,

Plaintiffs,
CONGRESS OF HISPANIC EDUCATORS, et a l ,

Plaintiff-Intervenors,
v.

SCHOOL DISTRICT NO. 1, Denver, Colorado, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The Board of Education of School District No. 1 seeks 
to end this case by moving for a determination that the 
District has provided an equal educational opportunity for 
all students and has remedied all past failures to comply 
with the requirements of the United States Constitution. 
More particularly, the matter now before this court is a 
motion, filed January 19, 1984, for entry of the following 
orders:

L An order declaring that the Defendant School 
District is a unitary school system in the following 
respects: a) Faculty, b) Staff, c) Transportation, d) 
Extracurricular Activities, e) Facilities, and f) Com­
position of Student Body.



B2

2. An order modifying and dissolving the injunction 
as it relates to the assignment of students to schools.

3. An order declaring that the remedy previously 
ordered in this case to correct the Constitutional vio­
lation as found has been implemented, and that there 
is no need for continuing court jurisdiction in the 
matter.

The purpose of the motion is set forth in the following 
paragraphs from it:

Throughout the proceedings herein, the Court has 
urged upon the parties the need to develop and de­
fine a process and procedure whereby the Court and 
the parties might have the opportunity to present 
evidence to the Court on the unitary nature of the 
district and the extent of the School District’s com­
pliance with the remedial orders of the Court, and 
for the need, if any, for continuing court jurisdiction 
over the affairs of School District No. 1.

The earliest definitions of a unitary school system 
enunciated six criteria to be considered by a court 
in its determination of whether a school system was 
dual or unitary. They included: Faculty, Staff, Trans­
portation, Extracurricular Activities, Facilities, and 
Composition of Student Body. Green v. County School 
Board, 391 U.S. 430, 435 (1968) An analysis has been 
conducted by staff utilizing the criteria as set forth 
above, and the working definition of the unitary 
school system, as announced by this Court in its 
Memorandum and Opinion dated May 12, 1982. The 
School District is prepared to show to the Court its 
compliance with the criteria and with the Court’s 
definition at an evidentiary hearing for that purpose.

Although the parties to the litigation have been 
before the Court on numerous occasions with respect 
to proposed changes in the orders as they relate to 
matters of pupil assignment, none of these hearings 
were designed to permit the parties to explore the



B3

extent to which the School District has fulfilled its 
remedial obligations; and, as a result, neither the par­
ties nor the Court have had a full opportunity to ex­
amine the data and the evidence that bears upon the 
question of whether the School District has in fact 
fully implemented the court ordered remedy and that 
the remedy has accomplished its purpose.

The requested full evidentiary hearing was held in May, 
1984, and the plaintiffs, defendants and intervenors have 
filed comprehensive briefs. The United States Department 
of Justice has also filed both pre-trial and post-trial 
memoranda as amicus curiae. The court is fully informed 
on the issues and arguments relevant to the motion.

GENERAL PRINCIPLES
The parties approach the issues and evidence in this 

case from different perspectives reflecting differing inter­
pretations of the scope of the equal protection clause. Per­
haps, as with visual perspectives, the difference is influ­
enced by the relative positions of the parties. The Board 
of Education looks at the case from the high ground oc­
cupied by those holding the power of governance. In that 
position there may be a tendency to accept a more static 
overview of a somewhat distant scene characterized by 
stability and serenity. The plaintiffs/intervenors represent 
people whose historical disadvantages give them an alter­
nate viewpoint. For those who are still deep in the valley, 
struggling for survival, and for those moving upward on 
the mountain, educational opportunity is the path to pro­
gress. They are on the move, seeing only transient scenery, 
and their primary concern is the direction of their move­
ment. Is the trail going forward and upward, or down­
ward and backward?



B4

The difference between the parties may also be illustra­
ted with a different analogy. The defendants ask that we 
look at the Denver school system by making detailed com­
parisons of enlarged aerial photographs taken in 1976 and 
1984. The plaintiffs/intervenors ask us to view a movie 
film record of events from 1968 to 1984, with close-ups 
of a few of the frames at different intervals. The choice 
turns on conflicting interpretations of constitutional law 
based on alternative approaches in analyzing Supreme 
Court opinions.

That process of interpretation of constitutional law will 
also be affected by methodology in establishing viewpoint. 
Does one plumb the depths of the relevant opinions as 
a series of pools, or is it more appropriate to look at the 
Court’s language as the flow of a meandering stream with 
eddies, backwaters and even changes of direction? The 
latter view is more consistent with the guiding role of 
the Court.1 School desegregation cases differ from most 
litigation in that much of the evidence is developed while 
the case is in court. In most lawsuits, the court’s focus

1 See Brown v. Board o f Education, 349 U.S. 294 (1955) (Brown II): 
The opinions of [Brown], declaring the fundamental principle 
that racial discrimination in public education is unconstitutional, 
are incorporated herein by reference.

Full implementation of these constitutional principles may re­
quire solution of varied local school problems. School 
authorities have the primary responsibility for elucidating, 
assessing, and solving these problems; courts will have to con­
sider whether the action of school authorities constitutes good 
faith implementation of the governing constitutional principles. 
Because of their proximity to local conditions and the possi­
ble need for further hearings, the courts which originally heard 
these cases can best perform this judicial appraisal.

Id. at 298 (footnote omitted). See, also Schauer, Refining the Law­
making Function o f the Supreme Court, 17 U. Mich. J.L. Ref., 
1-24 (1984).



Bo

is retrospective. The issues arise from historical events 
and the evidentiary disputes are resolved by the court’s 
findings of the probabilities about matters which occurred 
in the past. In school desegregation cases, there are poli­
tical and demographic changes which occur while the case 
is in court and even the court’s processes and decrees— 
at least the public perception of them—can be factors in­
fluencing some of those changes. It is also important to 
remember that the applicable principles of constitutional 
law have evolved under circumstances of change in the 
characteristics of our national community and in the 
course of developing new information and understanding 
about sociology and psychology.

Only 128 years ago, the Supreme Court asked:
The question is simply this: Can a negro, whose 

ancestors were imported into this country, and sold 
as slaves, become a member of the political communi­
ty formed and brought into existence by the Constitu­
tion of the United States, and as such become en­
titled to all the rights, and privileges, and immunities, 
guarantied by that instrument to the citizen? One of 
which rights is the privilege of suing in a court of 
the United States in the cases specified in the Consti­
tution.

Dred Scott v. Sandford, 60 U.S. (19 How) 393, 403 (1856).
The Court sought justification for its negative answer 

by finding that the founding fathers did not intend to 
recognize slaves or their descendants as citizens. Chief 
Justice Taney made the following observation about the 
status of Negroes at the time of adoption of the Declara­
tion of Independence and the Constitution:

They had for more than a century before been re­
garded as beings of an inferior order, and altogether 
unfit to associate with the white race, either in social 
or political relations; and so far inferior, that they



B6

had no rights which the white man was bound to re­
spect; and that the negro might justly and lawfully 
be reduced to slavery for his benefit. He was bought 
and sold, and treated as an ordinary article of mer­
chandise and traffic, whenever a profit could be made 
by it. This opinion was at that time fixed and uni­
versal in the civilized portion of the white race. It 
was regarded as an axiom in morals as well as in 
politics, which no one thought of disputing, or sup­
posed to be open to dispute; and men in every grade 
and position in society daily and habitually acted upon 
it in their private pursuits, as well as in matters of 
public concern, without doubting for a moment the 
correctness of this opinion.

And in no nation was this opinion more firmly fixed 
or more uniformly acted upon than by the English 
Government and English people. They not only seized 
them on the coast of Africa, and sold them or held 
them in slavery for their own use; but they took 
them as ordinary articles of merchandise to every 
country where they could make a profit on them, and 
were far more extensively engaged in this commerce 
than any other nation in the world.

The opinion thus entertained and acted upon in 
England was naturally impressed upon the colonies 
they founded on this side of the Atlantic. And, accord­
ingly, a negro of the African race was regarded by 
them as an article of property, and held, and bought 
and sold as such, in every one of the thirteen colonies 
which united in the Declaration of Independence, and 
afterwards formed the Constitution of the United 
States.

Id. at 407-8.
The Dred Scott opinion was, of course, reversed by the 

adoption of the Thirteenth and Fourteenth Amendments 
to the United States Constitution after the Civil War. 
Yet, the power of the continuing public perception of in-



B7

feriority of Blacks was reflected in the adoption of the 
“ separate but equal doctrine” in Plessy v. Ferguson, 163 
U.S. 537 (1896). There, the majority of the Supreme Court 
approved a Louisiana statute requiring separation of white 
and “ colored”  races in railroad coaches with the follow­
ing language:

The object of the [Fourteenth] amendment was un­
doubtedly to enforce the absolute equality of the two 
races before the law, but in the nature of things it 
could not have been intended to abolish distinctions 
based upon color, or to enforce social, as distinguished 
from political equality, or a commingling of the two 
races upon terms unsatisfactory to either. Laws per­
mitting, and even requiring, their separation in places 
where they are liable to be brought into contact do 
not necessarily imply the inferiority of either race to 
the other, and have been generally, if not universal­
ly, recognized as within the competency of the state 
legislatures in the exercise of their police power. The 
most common instance of this is connected with the 
establishment of separate schools for white and 
colored children, which has been held to be a valid 
exercise of the legislative power even by courts of 
States where the political rights of the colored race 
have been longest and most earnestly enforced.

Id. at 544.
The force of that assumption of inferiority is reflected 

in these words from the dissenting opinion of Justice 
Harlan:

The white race deems itself to be the dominant race 
in this country. And so it is, in prestige, in achieve­
ments, in education, in wealth and in power. So, I 
doubt not, it will continue to be for all time, if it re­
mains true to its great heritage and holds fast to the 
principles of constitutional liberty.

Id. at 559, 561.



B8

In Brown v. Board o f Education, 347 U.S. 483 (1954), 
the Supreme Court took notice of the historical experience 
of the Negro in America, and it was that history of racial 
disadvantage in our social, economic and political life 
which formed the predicate for the conclusion that racially- 
segregated schools are inherently unequal. In overruling 
Plessy v. Ferguson, the Supreme Court made a funda­
mental change in the interpretation and application of the 
equal protection clause of the Fourteenth Amendment. 
Departing from its past practice of deciding such issues 
by discoursing on political theory, the Court considered 
evidence of the actual effects of racial separation well 
beyond the record before it, using secondary sources of 
information.2 Thus, in affirming the Kansas case finding 
that segregation has a detrimental effect upon Negro 
children, the Court said:

Whatever may have been the extent of psychological 
knowledge at the time of Plessy v. Ferguson, this 
finding is amply supported by modern authority.

2 The Court’s use of matters of common knowledge concerning 
broad societal patterns was defended in Black, The Lawfulness 
o f the Segregation Decisions, 69 Yale L.J. 421 (1960). Professor 
Black wrote:

The case seems so onesided that it is hard to make out what 
is being protested against when it is asked, rhetorically, how 
the Court can possibly advise itself of the real character of 
the segregation system. It seems that what is being said is 
that, while no actual doubt exists as to what segregation is 
for and what kind of societal pattern it supports and imple­
ments, there is no ritually sanctioned way in which the Court, 
as a Court, can permissibly learn what is obvious to everybody 
else and to the Justices as individuals. But surely, confronted 
with such a problem, legal acumen has only one proper task— 
that of developing ways to make it permissible for the Court 
to use what it knows; any other counsel is of despair. And, 
equally surely, the fact that the Court has assumed as true 
a matter of common knowledge in regard to broad societal pat­
terns, is (to say the very least) pretty far down the list of 
things to protest against.

Id. at 427-428.



B9

Brown, 347 U.S. at 494 (footnote omitted). The footnote 
for that statement referred to several publications, in­
cluding E.F. Frazier, The Negro in the United States, 
674-681 (1949). The following passages appear in that 
work:

The theory of separate but equal educational and 
other facilities has never worked out in practice. Sepa­
rate education for Negroes has always meant inferior 
schools and inferior teaching personnel for Negro 
children. Inferior schools have caused a high rate of 
illiteracy to continue among Negroes since Emancipa­
tion. The resulting mental isolation of Negroes which 
continued a half century was only partially broken 
down by the mass migrations of Negroes to northern 
cities during and following World War I. Because of 
the discriminations in regard to employment the 
Negro has been kept in the lowest paid and unskilled 
occupations, and thus there has been no premium 
placed upon exceptional skill and talent among Negroes.

. . . Consequently, the Negro has never been permit­
ted to achieve the full stature of a man through compe­
tition with whites. Many of his leaders have owed their 
pre-eminence to the fact that they have played the role 
of mediators in a pattern of race relations based upon 
the economic dependence and social subordination of 
the Negro. The dominant white interests have singled 
out mediocre Negroes for the role of “ great Negroes,”  
while Negroes of superior mental endowment and cour­
age have been crushed as irresponsible radicals. Thus 
a factual and objective basis for the charge that the 
Negro is a “ child”  race has been provided in the whole 
system of racial discrimination. It is no wonder that 
since the Negro has been treated and regarded as a 
“ child”  race, whites have not taken him seriously. In 
fact, as the result of the system of discrimination, the 
Negro has not been permitted to play a serious role in 
the economic and social life of the nation.

Id. at 674-677.



BIO

Another of the publications cited in that footnote is G. 
Myrdal, An American Dilemma: The Negro Problem and 
Modem Democracy (1944) which includes the following ob­
servations:

But when segregation and discrimination are the out­
come of individual action, the second main norm of the 
American Creed, namely, liberty, can be invoked in 
their defense. It must be left to the individual white 
man’s own discretion whether or not he wants to receive 
Negroes in his home, shake hands with them, and eat 
with them. I f  upheld solely by individual choice, social 
segregation manifested by all white people in an Amer­
ican community can be—and is—defended by the norm 
of personal liberty. When, however, legal, economic, or 
social sanctions are applied to enforce conformity from 
other whites, and when Negroes are made to adjust 
their behavior in response to organized white demands, 
this violates the norm of personal liberty. In the national 
ideology, the point where approved liberty changes into 
disapproved restriction on liberty is left somewhat 
uncertain. The old liberal formula that the individual 
shall be left free to follow the dictates of his own will 
so long as he does not substantially hamper the liberty 
of other persons does not solve the problem, because 
it is not definite enough. As remarked in an earlier 
chapter, the American Creed is in a process of change 
from “ rugged individualism.” It is giving increasing 
weight to “ the other fellow’s” liberty, and thus narrow­
ing the scope of the actions which become condoned by 
the individualistic liberty formula, (emphasis in original)

To apply the American value premises in this condi­
tion of internal conflict within the concept of liberty it­
self—which is only another aspect of its external con­
flict with the concept of equality—stress has to be laid 
on the actual amount of discrimination. When there is 
substantial discrimination present, liberty for the white 
person has to be overruled by equality. To discern 
discrimination we must take into account the indirect



B ll

effects o f segregation in terms o f cultural isolation, 
political and legal disabilities, and economic disadvan­
tages, which are often much more important than the 
direct social discrimination, (emphasis added)

Id. at 573-574.
The impact of the Broom decision was felt far beyond 

the schools. In a firm and consistent line of decisions, the 
ruling was extended to prohibit public segregation of other 
public facilities, such as transportation systems, Gayle v. 
Browder, 352 U.S. 903 (1956); parks and playgrounds, New 
Orleans City Park Improvement A ss’n v. Detiege, 358 
U.S. 54 (1958), Wright v. Georgia, 373 U.S. 284 (1963), 
Watson v. Memphis, 373 U.S. 526 (1963); golf courses, 
Holmes v. City o f Atlanta, 350 U.S. 879 (1955); beaches 
and bath houses, Mayor o f Baltimore v. Dawson, 350 U.S. 
877 (1955); auditoriums, Muir v. Louisville Park Theatri­
cal A ss’n, 347 U.S. 971 (1954); courthouses, Johnson v. 
Virginia, 373 U.S. 61 (1963); parking garages, Burton v. 
Wilmington Parking Authority, 365 U.S. 715 (1961); and 
airports, Turner v. City o f Memphis, 369 U.S. 350 (1962). 
See also, Loving v. Virginia, 388 U.S. 1 (1966) (striking 
down state miscegenation laws.) “ The principles announced 
in {Brown} . . . according to the command of the Consti­
tution, are indispensible for the protection of the freedoms 
guaranteed by our fundamental charter for all of us. Our 
constitutional ideal of equal justice under law is thus made 
a living truth.” Cooper v. Aaron, 358 U.S. 1, 19-20 (1958).

In this very civil action, the Supreme Court formally 
recognized that Hispanos suffered from much of the same 
economic and cultural deprivations. Keyes v. School 
District No. 1, Denver, Colo., 413 U.S. 189, 197 (1973). 
Indeed, the Court made the following specific determina­
tion with respect to the Denver, Colorado community at 
page 198 of the opinion:



B12

[TJhough of different origins, Negroes and Hispanos 
in Denver suffer identical discrimination in treatment 
when compared with the treatment afforded Anglo 
students. In that circumstance, we think petitioners 
are entitled to have schools with a combined pre­
dominance of Negroes and Hispanos included in the 
category of “ segregated” schools.

Perhaps much of the confusion, controversy and continu­
ing litigation which has occurred nationally in the 31 years 
since Brown, and locally in the 12 years since Keyes, have 
been caused by a failure to appreciate the Court’s con­
nection of school policy with national history. It is not 
that the schools have been singled out as experimental 
vehicles to redress all of the past injustice and inequity 
suffered by racial minorities; it is that the courts have 
prohibited school officials from perpetuating the disadvan­
tages caused by past practices of the larger society.

The reason that racial separation in public schools is a 
denial of equal protection of the laws in contravention of 
the restraint of the Fourteenth Amendment is that in 
1954, and 1973, and still today, the Anglo, the Black and 
the Hispano continue to occupy different positions in our 
pluralistic nation. To find segregative intent, it is not 
necessary to find that an act or omission resulted from 
bad purpose or evil motive; it is sufficient if it reflects 
a disparate perception of relative worth. The attitude of 
neutrality characterized by the newly popular phrase “ color 
blindness” avoids the obligation to recognize the continu­
ing effects of past prejudices, practices and passions.

Stripped of all legalese, the present state of the law is 
that whatever other disadvantages may be visited upon 
an individual in the accident of birth, the Constitution pro­
hibits any governmental use of race, color or ethnicity to 
impose an impediment to the seeking of benefits of public 
educational services.



B13

The scientific community continues to find significant 
evidence to suggest that each human being may be pre­
destined by an individual genetic code in very significant 
ways. These individual differences may be influences on 
mental and physical development, behavioral adjustment 
and risk factors for disease, all independently of race, sex 
or other group characteristics. These findings of physical 
science compel a reading of the “ self-evident truth” that 
“ all men are created equal,” to mean that the govern­
ment must act “ as i f ’ each person has equal potential for 
achievement. No school policy and no court order can 
assure any particular level of success in public schools any 
more than in any other aspect of life. Individual students 
will flunk, become disciplinary problems, drop out or 
otherwise fail to meet expectations for reasons wholly 
unrelated to race, ethnicity, and environment. The true 
causes for those results are properly matters of interest 
to educators, sociologists, psychologists, physicians and 
other disciplines. Neither cause nor effect can be used in 
applying constitutional principles.

Stated as a prohibitive, what the Constitution requires 
is that the government must not itself act as an agent 
of predestination in association with any immutable char­
acteristics of birth. There is no scientific evidence to sug­
gest that such group characteristics as race or ethnicity 
are limiting factors on any individual. To the extent that 
race is a disadvantage, it is the result of prejudices, atti­
tudes and historical deprivation. Data suggesting different 
achievement levels according to race are relevant only as 
circumstantial evidence of the effects of discriminatory at­
titudes and practices. To escape the intangible effects of 
any stereotyping or latent bias, government officials must 
avoid the use of racial identifications in acting on public 
issues. That is true whether government acts to regulate 
and restrict conduct or to provide services such as educa­
tional opportunity.



B14

THE DEFENDANTS’ POSITION
The defendants’ carefully constructed argument in sup­

port of the subject motion has the appeal of logic. Stated 
succinctly at page 2 of the defendants’ post-trial brief, the 
contention is this:

Once a school district has complied with a constitu- 
tionally-acceptable court-ordered remedy that is de­
signed to desegregate the system in the full sense, 
and has maintained substantial compliance with that 
remedy for a sustained period of time, the school dis­
trict is entitled to be declared unitary unless there 
have been intervening acts of discrimination.

The prime thesis of this argument is that this court’s 
1974 Final Judgment and Decree, as modified in 1976, was 
a complete remedy for all of the constitutional violations 
found in this case. The validity of that thesis is critical 
to the contention that by complying with the requirements 
of that Decree the District established a unitary school 
system.

What was to be remedied? Simply put, what was re­
quired was the reversal and eradication of the effects of 
a policy of geographical containment of Black people in 
an area of northeast Denver. For almost ten years the 
members of the Board of Education tried to keep Black 
families out of the White residential neighborhoods east 
of Colorado Boulevard by manipulating attendance areas, 
designing new school construction, installing mobile class­
room units, and steadfastly refusing to relieve overcrowd­
ing of Black schools. This policy was at work in 1960 when 
Barrett School was constructed as a relatively small school 
building with an attendance zone entirely in the Black 
community, even though a White school located only a 
few blocks away was operating at 20% over capacity. It 
was apparent that Barrett, Stedman, Park Hill, Philips



B15

and Hallett Elementary Schools were designed for attend­
ance of Black pupils. Mobile units and additional class­
room construction were used to expand the capacity of 
those schools while preserving the Anglo character of the 
schools to the east of them. The continued use of that 
segregative policy was clearly the will of the electorate. 
When a slim majority of the Board adopted resolutions 
in 1969 to attempt to alleviate the segregative effects of 
this policy by reassigning some students and transporting 
them out of racially separated neighborhoods, the people 
of Denver overwhelmingly repudiated that action by de­
feating two of the most articulate Board members and 
replacing them with new members who vowed to reverse 
those resolutions. When those promises were kept, the 
plaintiffs came to this court, seeldng a preliminary injunc­
tion in 1969.

Through all of the intervening years, the court and the 
parties have struggled with two elusive and intractable 
questions. How did that policy of containment in northeast 
Denver affect the Denver Public School System as a 
whole? What is required to remove those effects? Those 
questions have caused this case to be considered by two 
judges in this court, the judges of the Tenth Circuit Court 
of Appeals, and the Justices of the Supreme Court of the 
United States. A third question, which has been lurking 
in the shadows, now comes to the spotlight. What must 
be done to protect against future resegregation and a 
return to a dual system?

It is the law of this case that the 1974 Final Judgment 
and Decree was not an adequate remedy for segregated 
school assignments. The Tenth Circuit Court of Appeals 
in Keyes v. School Dist. No. 1, Denver, Colo., 521 F.2d 
465 (10th Cir. 1975), cert, denied, 423 U.S. 1066 (1976), 
faulted the court plan for pupil assignment because it used 
only part-time pairing. The appellate court said:



B16

We hold that the part-time pairing component of the 
court’s remedy for desegregation of elementary schools 
is not constitutionally acceptable as a basic and per­
manent premise for desegregation but deem that prac­
ticality negates the necessity o f invalidating in toto 
this aspect o f the trial court’s judgment at this time. 
We read this innovation as recognized by the trial 
court as an adjunct to be tolerated only as such under 
the temporary conditions of the present and as a step 
toward total integration.

Although the district court’s remedial discretion is 
broad, it is necessarily bounded by the constitutional 
requirement that the court make “ every effort to 
achieve the greatest possible degree of actual deseg­
regation, taking into account the practicalities of the 
situation.” Davis v. B ’d o f School Commissioners o f 
Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 
28 L.Ed.2d 577. In examining the record and the dis­
trict court’s opinion, we find no insurmountable prac­
tical impediment to full-time desegregation. Indeed 
both the court and its consultant Dr. Finger were 
of the view that part-time classroom pairing would 
easily convert to a full-time program. The court’s 
part-time plan offers some of the most severely seg­
regated schools in the district only part-time deseg­
regation; of the eighteen predominantly minority 
schools in the part-time program, thirteen have pro­
jected enrollments of less than ten percent Anglo 
pupils. Under the circumstances a partial solution for 
these schools is not enough.

Id. at 477-478 (emphasis added) (footnote omitted).
The Tenth Circuit also faulted the district court’s plan 

for leaving Boulevard, Cheltenham, Del Pueblo, Elyria and 
Garden Place as segregated Hispano schools, and reversed 
the conclusion that remedial education was an acceptable 
substitute for reassignment of students. With respect to 
those schools, the Court remanded with the following in­
struction:



B17

We therefore remand this portion of the case for 
a determination whether the continued segregation 
of students at the five mentioned schools may be 
justified on grounds other than the institution and 
development of bilingual-bicultural programs at the 
schools. “ The district judge . . . should make every 
effort to achieve the greatest possible degree of ac­
tual desegregation and will thus necessarily be con­
cerned with the elimination of one-race schools.”  
Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281.

Id. at 480.
The establishment of the East-Manual complex was also 

reversed. Finally, the appellate court affirmed the district 
court’s requirements with respect to the desegregation 
of faculty and staff, using the following language:

During the 1973-74 school year, disproportionate 
numbers of the Denver school system’s minority 
teachers were assigned to schools with high concen­
trations of minority students. Despite the District’s 
institution of a minority recruitment program in re­
cent years, the percentage of minority faculty mem­
bers in the system has not increased appreciably. Of 
the view that faculty desegregation is essential to the 
process of school desegregation, the district court 
ordered the District to assign its personnel so that, 
in each school, the ratio o f minority teachers and 
staff to Anglo teachers and staff shall not be less 
than 50% o f the ratio o f minority to Anglo staff in the 
entire system. The School Board does not dispute the 
propriety of this component of the court’s remedy.

Contrary to the School Board, we believe that 
these measures to ensure faculty desegregation were 
properly part of the court’s order. Faculty and staff 
desegregation is an “ important aspect o f the basic 
task o f achieving a public school system wholly free 
from  racial discrimination.”  (citations omitted) . . .



B18

We believe that the court’s faculty and staff desegre­
gation orders were proper and we affirm.

Id. at 484 (footnotes omitted) (emphasis added).
The March 26, 1976 Order, entered by Judge Doyle, ap­

proved the use of an agreed plan in response to the man­
date of the Court of Appeals. It is clear, however, that 
future change was expected because the court said:

The School Board, in Resolution 1897, has re­
quested that no changes be made in student school 
assignments for three years; this in the interest of 
continuity and stability. In the court’s view the ob­
jective is good with the exception that some flexibil­
ity should be retained so as to make adjustments for 
substantial population changes.

Additionally, the issue of bilingual education was left open. 
At that time, it was expected that a stipulated proposal 
for the modification of the bilingual program would be im­
mediately forthcoming.3

This court honored the request to avoid altering the stu­
dent assignment plan for a period of three years, and the 
only changes made were those requested by the District 
for the limited circumstances of particular situations. To 
plan for declining pupil enrollment and consequent excess 
plant capacity, in 1977 the Board of Education appointed 
an advisory committee of citizens to study the utilization 
of school buildings and to recommend criteria for closures 
and consolidations. That committee made a report which 
was accepted by the Board in April, 1978. The committee 
did not contemplate action to make changes before Sep­
tember, 1981. The Board changed that time to September,

3 In fact these issues were litigated at length in May, 1982, result­
ing in the Memorandum Opinion and Order on Language Issues 
which appears as Keyes v. School Dist. No. 1, Denver, Colo., 576 
F. Supp. 1503 (D.Colo. 1983).



B19

1980. After the Community Education Council, a court- 
appointed monitoring group, expressed concerns that im­
balances in racial composition and crowded conditions had 
developed in some schools, hearings were held in this 
court in January, 1979 to consider the status of those 
school.

At that time the court was informed that the Board of 
Education had directed the filing of a report by an Admin­
istration Task Force on school closings and school assign­
ments in March, 1979. Accordingly, the court set May 1, 
1979 as the date for the filing of a comprehensive stu­
dent assignment plan, and set June 1, 1979 as a date to 
report on the status of compliance with orders requiring 
affirmative action in the hiring, assignment and in-service 
training of teachers, administrators and staff. A new plan, 
adopted in Resolution No. 2060, met opposition from the 
plaintiffs/intervenors and, accordingly, a further hearing 
was held on July 20, 1979 on the motion of the defen­
dant School District No. 1 to implement those portions 
of Resolution No. 2060 dealing with school closings and 
pupil assignments for the school year 1979-1980.

No one suggested then that this court did not have 
jurisdiction to modify the 1976 pupil assignment plan. 
Moreover, while the Board wanted to close four schools, 
it failed to take any action to consider the objections and 
concerns which had been expressed at the hearing. The 
Board members simply did not meet in legislative ses­
sion, and left it to this court to make the necessary 
changes in pupil assignments. That dereliction of the 
Board’s duty permitted its members to avoid criticism 
from the community, and positioned them to continue 
their popular protest of judicial intervention into local 
self-governance.

This court addressed the question of the extent of de­
segregation which existed in 1979 in the Memorandum



B20

Opinion and Order which appears as Keyes v. School Dist. 
No. 1, Denver, Colo., 474 F. Supp. 1265 (D.Colo. 1979). 
The court noted that the Board of Education and admin­
istration recognized that Gilpin, Fairview and Greenlee 
Elementary Schools had not met the desegregation guide­
lines, and said:

What is now needed is recognition by the Board of 
Education, school administration, and staff that they 
have not yet established a unitary, non-racial school 
system in Denver, Colorado and that they have a 
legal obligation to demonstrate to this court that they 
are taking appropriate action to reach that result.

Id. at 1272.

This court then adopted the plaintiffs/intervenors’ pro­
posal for the reassignment of students from the closed 
Ellsworth Elementary School; made its own reassignment 
of students from the closed Emerson Elementary School; 
made assignments to the new McKinley-Thatcher School; 
rejected the Board’s proposed removal of Ashley mobile 
units; approved the reassignment of pupils from closed 
Elyria Elementary School; adjusted the attendance zone 
of Belmont School; adjusted the Fairview-Greenlee-Traylor 
grouping by pairing Fairview and Rosedale; and author­
ized the establishment of an Oakland-McGlone pair. There 
was no adjustment for Gilpin and Mitchell, which remained 
segregated schools.

There was no appeal from the 1979 Order. To the con­
trary, the court’s view that unitary status had not been 
achieved appeared to have been accepted when the Board 
appointed an Ad Hoc Committee in May, 1980 to create 
a definition of a unitary system and to develop guidelines 
for its identification. That action was taken by Resolu­
tion No. 2110, which included the charge that the Ad Hoc 
Committee should also design a new student assignment



B21

plan for pupil assignments to elementary and middle 
schools based on demographic data which had been pre­
sented to the Board by the long-range planning committee 
in March, 1980.

The long-range planning committee had been created by 
Resolution No. 2079 in August, 1979. Its report recom­
mended developing a middle school program, eliminating 
junior high schools and establishing four-year senior high 
schools. That educational change required reassignment 
of all ninth grade pupils, thereby disrupting the existing 
attendance zones. Accordingly, the work of both commit­
tees converged.

The Ad Hoc Committee’s pupil assignment proposal was 
the subject of detailed study by the Board of Education 
during the summer of 1981. Despite a division on the issue 
of “ busing,” the Board developed a student assignment 
plan. It was submitted to this court along with an alter­
native open enrollment plan approved by a divided vote 
and without staff study. In the “Submission of Plans” filed 
October 30, 1981, the District said:

PURSUANT to the action of the Board of Educa­
tion, School District No. 1, . . . submits the attached 
proposals entitled, Community Neighborhood School 
Open Enrollment Concept, and The Denver Public 
Schools: A  Unitary System, to the Court for its con­
sideration.

At the time the Board directed the submission of 
these proposals, the following motion was adopted:

That the Board of Education submit to the 
United States District Court, for its considera­
tion, the proposals entitled, Community Neigh­
borhood School Open Enrollment Concept and 
The Denver Public Schools: A Unitary System, 
as developed by the Board of Education with the 
following recommendations:



B22

A. The Community Neighborhood School Open 
Enrollment Concept plan is the desirable 
plan.

B. If the Court insists on the maintenance of 
pupil assignments which are based upon the 
racial and ethnic identification of students, 
the Board submits the alternate plan for the 
Court’s consideration provided, however, 
that in those instances where schools are 
paired, that the Court authorize the discon­
tinuance of the pairing and return of the 
paired schools to neighborhood schools at 
such time as the racial and ethnic percen­
tages within the paired schools fall within 
a range of 20-63% Anglo.

*  *  *

That following submission of the plans, that the 
Court determine that with the implementation 
of either plan, that the School District is a uni­
tary school system and establish a specific time­
table for the relinquishment of the Court’s juris­
diction.

Upon this court’s refusal to choose between two such 
dramatically divergent approaches, the Board submitted 
the open enrollment concept in what came to be called 
the “Total Access Plan.” It was the subject of a two-week 
evidentiary hearing in March, 1982, which resulted in the 
court’s rejection of that plan upon the finding that it was 
lacking in “ concern, commitment and capacity.” The Board 
then submitted the “ Consensus Plan” which consisted of 
the October 30, 1981 student assignment plan with two 
magnet schools as educational enhancements which had 
been suggested in the Total Access Plan. The interim 
nature of the Consensus Plan is identified in the follow­
ing language from the introduction to it:



B23
INTRODUCTION

In response to the order of the Federal District 
Court of March 15, 1982, and in accordance with the 
Denver Board of Education motion of March 18, 1982, 
a pupil assignment plan is being submitted for the 
achievement of a unitary, non-racial system of public 
education.
This Pupil Assignment Plan combines the Consensus 
Plan of October 1981 with certain educational enhance­
ments of the Total Access Plan of December 1981. 
It reflects the determination of the Board of Educa­
tion to provide a quality educational experience for 
all children which will:

• create as many walk-in schools as possible
® remove as many pupils as possible from re­
quired busing
• bring stability to pupil assignment areas
• continue the effort to realize and maintain a 
unitary school system
• remain sensitive to the changing needs of a 
diverse, urban pupil population
• be in compliance with the United States Dis­
trict Court Order.

The Pupil Assignment Plan includes the mandatory 
assignment of pupils, the closing of nine schools, and 
the implementation of the middle school program now 
in preparation.
The preparation of the Consensus Plan included ex­
tensive community involvement, intensive study by 
an Ad Hoc Committee of the Board of Education, and 
direct personal involvement of all members of the 
Board of Education in the final decision making proc­
ess, resulting in a comprehensive plan for adjusting 
existing school attendance boundaries.
Two educational enhancements of the Pupil Assign­
ment Plan are the Fundamental School to be con-



B24

ducted at Knight Elementary School and a self- 
supporting extended day school at Gilpin Elementary 
School. The ethnic ratio in each of these schools shall 
reflect the pupil population in the District in keep­
ing with Court determined pupil ethnic assignment 
ratios. Knight Fundamental School will be open to 
all pupils in the District; the Gilpin School popula­
tion will include pupils in the home attendance area 
and pupils from the entire District who are enrolled 
in the extended day program.
Upon Court approval of the Pupil Assignment Plan, 
staff will begin preparations for further educational 
enhancements for possible addition each year as an 
ongoing feature of District educational planning 
policy.
In addition, the Plan includes three significant Denver 
Public Schools initiatives, components of the Total Ac­
cess Plan, which are designed to enhance educational 
opportunity:

• District and School Accountability Councils
• Guidelines for Pupil Placement
• Standards for School Effectiveness.

The presently authorized District and School Account­
ability Councils are used in the Plan as monitors of 
educational quality and equity, achievement of goals, 
and equitable disciplinary policies and procedures.
Guidelines for Inschool Pupil Placement were ap­
proved by the Board of Education in February 1982. 
These guidelines ensure that pupils will participate 
in experiences that are relevant to the cultural, 
ethnic, and racial diversity of the school and that 
grouping is based on a fair assessment of pupils’ 
skills, interests, needs, and aptitudes.
The “ Standards for School Effectiveness”  is based 
on extensive research which has identified character­
istics of effective schools. The “ Standards” includes 
specific instruments for assessing these characteristics



B25

and means for maintaining effective practices and im­
proving areas of weakness in each school.
Finally, the Board of Education submits for the 
Court’s approval plans for building a needed elemen­
tary school facility in Montbello and a replacement 
facility in the Columbian area.
The basic instructional programs and educational en­
hancements presently in place in the Denver Public 
Schools also are described and included in this report.

In approving the Consensus Plan, this court emphasized 
that the approval was for an interim solution, recogniz­
ing that the plaintiffs/intervenors had made objections to 
portions of it with an evidentiary showing that it would 
probably produce resegregative effects in some elementary 
schools. The court’s reservations were expressed in the 
following language:

In this case, I am now accepting the modified con­
sensus plan for the single school year of 1982-83. I 
do so with considerable reservation because I am not 
convinced that the incumbent school Board has shown 
a commitment to the creation of a unitary school sys­
tem which will have adequate capacity for the de­
livery of educational services without racial disadvan­
tages.

The consensus plan is an expedient which will ac­
commodate the educational policy decision to move 
to middle schools and which will attenuate the 
divisive effects from the factionalism found in the 
present board of education. The positive element in 
this plan is that it reflects a consensus of the views 
of the board members. Acceptance of this plan for a 
single school year is not to be construed as an abdi­
cation of this court’s authority and responsibility to 
compel compliance with the desegregation mandate.

Keyes v. School Dist. No. 1, Denver, Colo., 540 F. Supp. 
399, 403 (D. Colo. 1982).



B26

Along with that reservation, the court attempted to set 
some direction for the anticipated future planning by adopt­
ing the Ad Hoc Committee’s definition of a unitary school 
system as follows:

A unitary school system is one in which all of the 
students have equal access to the opportunity for 
education, with the publicly provided educational re­
sources distributed equitably, and with the expecta­
tion that all students can acquire a community defin­
ed level of knowledge and skills consistent with their 
individual efforts and abilities. It provides a chance 
to develop fully each individual’s potentials, without 
being restricted by an identification with any racial 
or ethnic groups.

Id. at 403-404.

This court also expressed a favorable view of the Ad 
Hoc Committee’s guidelines as criteria for identifying a 
unitary system in operation. Believing that progress 
toward the defined goal of unity required both effective 
monitoring and expert advice from appropriate academic 
disciplines, and after consultation with counsel for all par­
ties, the court appointed the Compliance Assistance Panel, 
composed of three outstanding scholars who had appeared 
at various times as expert witnesses in this case.

The court’s charge to that committee was to perform 
the following duties:

1. To meet with the Board of Education, any com­
mittee or administrative staff designated by the 
Board, and with counsel for the parties herein, for 
the purpose of preparing a timetable for the prepara­
tion and submission of a pupil assignment plan for 
the school year 1983-84.

2. To meet with the Board of Education, any com­
mittee or administrative staff designated by the 
Board, and with counsel for the parties herein, for



B27

the purpose of preparing appropriate guidelines for 
pupil assignment plans for subsequent years, includ­
ing long-range planning.

3. To prepare and submit a set of criteria for the 
identification of a Unitary School System, using the 
Unitary School System Plan Final Report of the Ad 
Hoc Committee, presented June 5, 1981 (Defendant’s 
Exhibit D-2) as an initial working document.

4. To develop a plan to review, analyze and report 
on the present affirmative action plan for faculty and 
staff, including in-service training, and contingency 
plans for recruitment and reduction of faculty and 
staff, according to needs, on a non-discriminatory 
basis, consistent with existing collective bargaining 
contracts.

5. To prepare a plan for review, analysis and 
reporting on any racially discriminatory effects from 
present practices in the measurement of educational 
achievement and student discipline.

6. To develop recommendations for establishing 
criteria for school closings and new construction.

7. To develop a recommendation for constraints to 
be considered in proposals for the establishment of 
additional magnet schools and any other proposals for 
enhancement of educational opportunities to ensure 
racial and ethnic equality in the availability of such 
services.

8. To develop recommendations for interaction 
with local, state and national governmental agencies 
whose decisions concerning housing, zoning, transpor­
tation and other governmental services may influence 
and affect school policies and programs, including the 
demographics of the district.

9. To develop a plan for the collection and colla­
tion of the views of identifiable organizations and 
groups concerned with equal educational opportunity.



B28

10. To develop a plan for the assessment of the 
effectiveness of the monitoring and self-evaluation 
methods adopted by the School District.

It now appears from the testimony of Board members 
and administrative staff at the hearing on the subject mo­
tion that the court’s appointees were seen as interlopers, 
and that this court was considered to be intervening in 
the operation of the school system far beyond any appro­
priate role. It is also now apparent that contrary to what 
was being represented to the court and to the community, 
the Board had adopted a secret agenda to hire a mathe­
matician experienced in the display of statistical data in 
desegregation cases and a new lawyer, who had success­
fully represented another school district in Pasadena City 
Board o f Education v. Spangler, 427 U.S. 424 (1976), to 
develop the display presented with the effort to terminate 
this litigation. In consequence, the spirit of cooperation 
which had seemed to exist among counsel in this case was 
replaced by the old adversarial confrontation necessary 
for the proper presentation of the very different views 
which are now before this court.

In approving submission of the subject motion, the 
Board of Education altered its position in this litigation. 
All of the members of the Board adopting Resolution No. 
2228 have testified to their individual intentions in tak­
ing that action. The common theme was the expression 
of a shared concern that continuation under court control 
stigmatizes the Denver school system with consequent ad­
verse effects on the schools and the community as a 
whole. There is a perception that families have fled to 
private schools and to the suburbs to avoid forced bus­
ing, and a belief that this court’s involvement creates a 
climate of coercion which prevents the development of 
positive and innovative educational programs.



B29

This court does not discount the reality of the declin­
ing enrollment and the possibility of a causal relationship 
with court-ordered reassignments as suggested by some 
of the data in the evidence. It is also unquestioned that 
people who devote their time and energy to the extremely 
difficult task of serving on the Board of Education, with­
out remuneration, are citizens with outstanding qualities 
of commitment to the public welfare and dedication to the 
best interests of future generations. They are chosen from 
the community to express and implement the will of the 
electorate, and it must be assumed that the subject mo­
tion was the sense of the majority of the voters in Dis­
trict No. 1. Yet, School Board members, as all other 
elected representatives of the people, must also hear and 
heed the commands of the Constitution which often con­
flict with majoritarian opinion. The courts have the duty 
to articulate and apply those constitutional limitations in 
particular circumstances.

HAS A UNITARY SCHOOL SYSTEM BEEN 
ESTABLISHED IN DENVER?

In answering affirmatively, the defendants set forth a 
simple syllogism. Major premise: The 1974 Decree, as 
modified in 1976, called for a complete and adequate 
remedy for the segregative effects of Denver’s dual sys­
tem. Minor premise: The District has complied with all 
of the requirements of the Decree since 1976. Conclusion: 
Denver has achieved desegregation and is now a unitary 
district.

As already discussed, the Tenth Circuit Court of Ap­
peals determined the 1974 Final Decree to be inadequate. 
Therefore, the question to be asked with respect to the 
major premise in this argument is whether the 1976 modi­
fications, coupled with the remaining portions of the 1974



B30

Decree, constituted a sufficient plan to desegregate the 
entire Denver Public School System “ root and branch.” 4 
As counsel for the District recognize, an adequate desegre­
gation plan must include more than the assignment of 
pupils to avoid the racial identification of schools. It must 
also address the policies and practices with respect to 
faculty, staff, transportation, extracurricular activities and 
facilities. Green v. County School Board, 391 U.S. 430 
(1968). Additionally, an adequate remedy must ensure 
against any future use of school construction and abandon­
ment to serve, perpetuate, or re-establish a dual system. 
Swann v. Charlotte-Mecfclenburg Board o f Education, 402 
U.S. 1 (1971).

As noted above, the 1976 Order was simply the approval 
of a stipulated plan submitted in a spirit of compromise 
and, by Resolution No. 1897, the Board indicated clearly 
the expectation that changes would be required in future 
years. That was the reason the Board requested a three- 
year moratorium. Nothing in the 1974 Order, and nothing 
in the 1976 agreed plan, established any mechanism to 
avoid future segregation in making school construction and 
school abandonment decisions. At this point, it is well 
to return to the exact language of the Supreme Court in 
Swann:

In devising remedies where legally imposed segrega­
tion has been established, it is the responsibility of 
local authorities and district courts to see to it that 
future school construction and abandonment are not 
used and do not serve to perpetuate or re-establish 
the dual system. When necessary, district courts 
should retain jurisdiction to assure that these respon­
sibilities are carried out.

402 U.S. at 21 (emphasis added).
4 The “ root and branch”  requirement was established in Green 
v. County School Board, 391 U.S. 430, 438 (1968), and was specifi­
cally applied to Denver in Keyes, 413 U.S. at 213.



B31

Plainly, the court and all parties were aware that the 
remedy phase of this case did not end with the signing 
off on the 1976 agreed modifications and intended the 
retention of jurisdiction for the indefinite future. The ade­
quacy of any desegregation plan is, of course, measured 
not by its intentions but by its effectiveness. See Dayton 
Board o f Education v. Brinkman, 443 U.S. 526, 538 (1979) 
(.Dayton II). Thus, determination of the adequacy of the 
1974 plan, as modified in 1976, is directly related not only 
to the degree of compliance by the defendant District in 
the intervening years, but also to whether the implemen­
tation of the plan achieved the results intended. Therefore, 
the major premise and minor premise may be addressed 
together in reviewing the subsequent events.

What then was accomplished between 1976 and 1980? 
Mitchell, Gilpin and Fairview Schools fell below the then 
applicable guideline of a minimum 34% Anglo enrollment 
in the fall of 1976. In 1979, Mitchell had a 26.8% Anglo 
enrollment, and Gilpin had fallen to 19.6%. The need to 
close some school facilities became apparent as early as 
the 1976-1977 school year. This court’s Order set May 1, 
1979 as the date for the Board to file a comprehensive 
student assignment plan, and June 1, 1979 as the report­
ing date on the status of other aspects of the plan, in­
cluding affirmative action and in-service training. As 
earlier noted, a plan was submitted by Resolution No. 
2060, and the plaintiffs/intervenors filed objections with 
alternative proposals. In the absence of further Board ac­
tion to meet those objections and to consider the alter­
native proposals, this court was compelled to make the 
reassignment of pupils from the closed schools and to at­
tempt to alter the racial isolation of Fairview. The court 
did not act to remedy the racial identification of Gilpin 
and Mitchell Schools, and it was partially for this reason 
that the court expressly recognized that the 1979 order



B32

was interim action required to meet an “ existent emergen­
cy.” Keyes, 474 F. Supp. at 1271. The court also, as 
earlier noted, made an explicit finding of fact and con­
clusion of law that the School District had not achieved 
unitary status, and there was no appeal from that deter­
mination.

The adoption of the Consensus Plan was explicitly iden­
tified as another interim expedient, made necessary by 
the Board’s abrupt change of position in submitting the 
Total Access Plan, implicitly repudiating the work of its 
own Ad Hoc Committee. Keyes, 540 F. Supp. at 404. Dur­
ing the 1982 hearings, the plaintiffs addressed very spe­
cific objections to features of the Consensus Plan and 
predicted resegregative effects from its implementation. 
It is important to recognize that the “ consensus” of the 
“ Consensus Plan”  referred to a 6-1 consensus of the 
School Board members, and did not involve any agree­
ment by the plaintiffs or the intervenors. It is also clear 
that the basis for the formation of the Board consensus 
was an effort to reduce “ forced busing”  by attempting 
to expand walk-in attendance areas. The proposal was 
premised on a hope that there would a discernible move­
ment toward natural integration of these attendance zones 
by changes in housing patterns.

The evidence now before the court shows that the plain­
tiffs’ objections and the court’s concerns about the Con­
sensus Plan were well founded. Barrett and Harrington 
have become racially identifiable schools, with their re­
spective Anglo populations falling from 43.3% and 25.3% 
in 1981 to 18% and 15% in 1983. Mitchell fell from 22.5% 
to 12% Anglo. The plaintiffs/intervenors argue that the 
resegregation of these schools as a result of the adoption 
of the Consensus Plan establishes proof of official segre­
gative action which justifies remedial action by this court.



B33

The defendants counter with the contention that the loss 
of Anglo enrollment at these schools is additional evidence 
of the phenomenon of white flight, and that the existence 
of three racially identifiable elementary schools does not 
indicate a return to a dual system. Indeed, a basic dispute 
between the parties in this case is the manner in which 
statistics should be used to measure desegregation, as will 
be discussed later in this opinion.

It is not necessary to deal with the contention that the 
Consensus Plan showed segregative intent. The conclu­
sion of this court is that it has had and continues to have 
jurisdiction in this case, and no new intentional acts are 
required to justify the exercise of that jurisdiction.

Over the last nine years, the Denver Public School Sys­
tem has become smaller, both in numbers of students and 
schools. In 1976-77, the school system contained 61,680 
students in 119 schools. In 1983-84, the Denver Public 
School system contained 51,159 students in 107 schools. 
The ethnicity of the pupil population has also changed. 
In 1976-77, the District was 49.33% Anglo, 28.23% Hispano 
and 20.30% Black. In 1983-84, the District was 39.18% 
Anglo, 33.33% Hispano and 22.72% Black.

There are now three levels of schools in the system, 
elementary schools, middle schools (grades 7-8), and high 
schools (grades 9-12). In 1983-84, 80 schools, or nearly 75% 
of the schools in the school system, were elementary 
schools. The number of schools and their sizes are sig­
nificantly different at the three levels. Maintenance of 
stable ethnic distributions of students is more difficult in 
the elementary schools than in either the middle or senior 
high schools, because the same absolute change in the 
number of students in an elementary school has a greater 
relative effect on ethnic percentages in the school. Typical­



B34

ly, elementary school attendance zones are smaller and 
more sensitive to local demographic changes. The larger 
the school, the more elastic is its response to small changes 
in school populations.

The defendants have presented a vast array of statistical 
data and expert opinion to support the claim that since 
1976, the City and County of Denver and the Denver Pub­
lic School System have undergone demographic changes 
which have had a “ striking”  effect on student attendance 
patterns. The District urges that “ extensive movement” 
of population within Denver and “ a steady and large de­
cline in enrollment, almost all of which represented a loss 
of Anglo students” are reasons for the development of 
racial imbalance in certain schools. In making that argu­
ment, the defendants place heavy emphasis on an exhibit 
derived from a question in the 1980 long-form census ques­
tionnaire (which asked where people lived five years ago) 
to suggest that there was a large migration of Anglo 
families with school-age children from Denver out to the 
suburbs between 1975 and 1980, and that there was no 
significant converse movement.

This presentation is flawed by the omission of informa­
tion about persons who lived in Denver in 1975 and moved 
away from the entire metropolitan area. The exhibit titled 
“ Patterns of Demographic Mobility and Family Income 
Within Denver SMSA” presents data in three groups. 
Group A is titled “ Denver Residents,” group B is “ Subur­
ban Residents,”  and group C is “ In-Migrants.”  The uni­
verse from which the percentages are computed for groups 
A and B is not complete. Group A only makes sense as 
a description of what has happened to the set of people 
who were Denver residents in 1975. It includes those 1980 
Denver residents who answered that they did not move 
or moved only within Denver. It also includes those



B35

residents in the Denver suburbs in 1980 who responded 
that they lived in Denver 5 years earlier. However, Group 
A does not include the persons who did live in Denver 
in 1975 but who moved away from the Denver SMSA 
(Standard Metropolitan Statistical Area) before 1980. The 
calculations for Group B contain the same omission. With­
out knowing how many households moved away from the 
Denver metropolitan area since 1975, accurate percentages 
cannot be computed, and the data are not very helpful 
in the present analysis. This court is not persuaded that 
demographic change is the reason for the development of 
racial imbalance in the schools.

HAS DISTRICT NO. 1 COMPLIED 
WITH THE COURT ORDERS?

Student Assignments

The District did implement the pupil assignment plan 
accepted by the 1976 Decree in the school year 1976-1977. 
Transportation was provided and, on the whole, pupils 
were required to attend the designated schools. Accord­
ingly, during that particular school year, the Denver 
school system can be considered desegregated with re­
spect to pupil assignments. That, of course, is but one 
of the elements in a unitary system.

Faculty Assignments

The plaintiffs/intervenors contend that there has never 
been compliance with the faculty assignment provision of 
the 1974 Decree. On this point, the evidentiary hearing 
on the subject motion presented a question of which this 
court was not previously aware. Paragraph 19A of the 
1974 Decree imposed the following requirement with re­
spect to faculty assignments:



B36

Effective not later than the beginning of the 1974-75 
school year, the principals, teachers, teacher-aides and 
other staff who work directly with children at a 
school shall be so assigned that in no case will the 
racial or ethnic composition of a staff indicate that 
a school is intended for minority students or Anglo 
students. The District shall assign the staff described 
above so that the ratio of minority to Anglo teachers 
and other staff in each school shall be not less than 
50% of the ratio of such teachers and other staff to 
the teachers and other staff, respectively, in the 
entire school system. Because of the present small 
number of Chicano teachers in the system, complete 
achievement of the required ratios as to Chicano 
teachers is not required immediately, but should be 
achieved as soon as possible.

The parties have differing interpretations of that lan­
guage. The District interprets paragraph 19A to require 
that the ratio of Black teachers to the total of Black, 
Hispano and Anglo teachers in each school be compared 
with the district-wide ratio of Black teachers to the 
district-wide total of Black, Hispano and Anglo teachers, 
and that similar but separate ratios also should be com­
puted for Hispano teachers.

Further, the District has determined that in applying 
these ratios for a particular school, if the required number 
of Black or Hispano teachers is some integer number plus 
a fraction which is less than one-half, then a school is in 
compliance with the decree if its faculty includes only the 
whole number of such teachers. Any fractional part less 
than one-half has been ignored. For example, in 1981-82, 
the district ratio of Black classroom teachers to the total 
of Black, Hispano and Anglo classroom teachers was 0.1350, 
and one-half of this number is 0.0675. Carson Elementary 
School had 25 Black, Hispano and Anglo teachers. To have 
a Black faculty percentage greater than 50% of the dis­



B37

trict-wide ratio, Carson would require 0.0675 x 25, or 1.69 
Black teachers. In 1981-82, Carson had 3 Black teachers and 
satisfied paragraph 19A as interpreted by the District. How­
ever, in 1981-82, Johnson elementary school had 22 Black, 
Hispano and Anglo teachers and would need 0.0675 x 22, 
or 1.485 Black teachers to satisfy the test. Johnson had 
1 Black teacher. Because the remaining fraction was less 
than 0.5, the District determined the school to be in com­
pliance.

Another important aspect of the District’s approach is 
the use of the prior year’s district-wide teachers’ ratios 
to determine the degree of compliance for a current year 
because it is the District’s practice to assign faculty mem­
bers in the spring for the following fall. A possible result 
is that the district-wide ratios used are less than the ac­
tual ratios of minority to total teachers in the district for 
the following year if, in fact, the proportion of minority 
teachers increases from year to year, as a result of the 
affirmative action hiring program. That has, indeed, oc­
curred. The District defends this as the proper way to 
determine compliance because it is the only basis on which 
faculty assignments for a new school year can be made. 
There is no explanation for that conclusion.

The District apparently has adopted the interpretation 
which requires the fewest minority teachers in schools 
which previously had a predominantly Anglo faculty. In 
1983-84, there were 13 schools with one Black teacher and 
27 schools with one or no Hispano teachers. After the 
large scale administrative reassignment of teachers in 
1974, the minimum ratios have been maintained principally 
through assignment of new teachers and voluntary teacher 
transfers.

The plaintiffs contend that the correct interpretation of 
the requirement is to use a ratio of all minority teachers



B38

to Anglo teachers. Additionally, they urge that fractions 
of less than one-half should not be disregarded and cur­
rent year data should be used. With this interpretation, 
the plaintiffs determined that for 1983-84, there were 
these deficits:
School Deficit School Deficit School Deficit
Force 1 Henry 2 Jefferson 4
Newlon 1 Baker 1 Kennedy 3
Remington 1 Lincoln 3
Cheltenham 1 West 2
Sabin 1
Westwood 1
Johnson 1

In this particular dispute, the parties have overlooked 
the language of the Tenth Circuit Court of Appeals. What­
ever ambiguity may exist in paragraph 19A of the district 
court’s 1974 Decree, the appellate court made it clear that 
it was affirming an order which it construed as requiring 
that the District “ assign its personnel so that, in each 
school, the ratio of minority teachers and staff to Anglo 
teachers and staff shall not be less than 50% of the ratio 
of minority to Anglo staff in the entire system.” Keyes, 
521 F.2d at 484. There is no ambiguity in that language, 
and it is the law of the case, binding on this court as well 
as the parties. Accordingly, the District’s view is incor­
rect and the District has been out of compliance with this 
requirement during all of the intervening school years. 
Additionally, “ rounding down” instead of “ rounding up” 
of fractions is not in compliance with the tenor of the De­
cree which was to remedy, as much as possible, the prior 
practice of assigning Black teachers to Black schools as 
“ role models.”

The April 17, 1974 Order did not expressly require the 
District to reduce minority to Anglo teacher ratios in each 
school below a specified maximum; however, paragraph



B39

19A provides that “principals, teachers, teacher-aides and 
other staff who work directly with children at a school 
shall be so assigned that in no case will the racial or 
ethnic composition of a staff indicate that a school is in­
tended for minority students or Anglo students.”

The evidence presented at the hearing indicates that the 
District has not had any expressed policy of limiting the 
concentration of minority teachers in the minority schools 
using specific guidelines such as are set out in the April, 
1974 Order for schools with a high concentration of Anglo 
teachers. On cross-examination Dr. Stetzler, executive di­
rector of personnel for the school system from 1974 to 
1982, testified that the District never did establish any 
guidelines for determining when a school had too many 
minority teachers, stating that it was “ a matter of judg­
ment.”

Dr. Welch, the District’s expert witness on teacher as­
signment and affirmative action at the hearing, testified 
that he did not examine, and by implication was not asked 
to examine, the extent to which the schools with historic 
concentrations of minority teachers, or formerly segre­
gated minority schools, still had minority teachers dispro­
portionately represented or over-represented.

As support for its assertion that the District is unitary 
with regard to the assignment of school faculty, the defen­
dants argue, somewhat disingenuously, that in 1976 there 
were only 8 schools whose Black faculty exceeded 20% 
and only one school whose Hispano faculty exceeded 20%. 
It is not clear why the District chose 20% as a comparison 
figure. In 1976-77, the percentage of Black teachers in the 
district was 10.67% and the percentage of Hispano teachers 
was 6.17%, so that the 20% figure for minority teachers 
in a particular school is significantly above the 1976 minor­
ity averages. However, using the same 20% figure for



B40

later years, the District fails to point out that the number 
of schools at which the Black faculty equalled or exceeded 
20% steadily increased so that in 1983-84 there were 33 
schools in which the Black faculty equalled or exceeded 
20% and 11 schools in which the Hispano faculty equalled 
or exceeded 20%.

In 1976-77, there were no schools whose Black or His­
pano faculty was greater than or equal to 30% of the total 
faculty. In 1983-84 there were 8 schools whose Black facul­
ty met or exceeded 30% and 5 schools whose Hispano 
faculty exceeded 30%. It is true that during this period 
the percentage of minority teachers in the district in­
creased. In 1983-84 the district-wide percentage of Black 
teachers was still only 13.79%, and the Hispano percent­
age was 9.67%. Therefore, the 20% figure used by the 
District was nearly 1.5 times the district average for 
Black teachers, and twice the District average for Hispano 
teachers.

The schools with a high percentage of minority teachers 
are, in large part, the same Park Hill and core city schools 
identified by the Supreme Court in Keyes, 413 U.S. at 
192-193 nn. 3,4. Seventy-five percent of the schools listed 
below are north of Ninth Avenue. Comparing the location 
of the listed school with its percentage of minority teachers 
and the minority residential patterns in Denver, reflected 
in the census data maps submitted by the District, it ap­
pears that the concentration of minority teachers in the 
schools is correlated to minority residential patterns.5

5 It is to be remembered that there now are bilingual programs 
in effect at some schools as a consequence of this court’s orders 
entered in that phase of this litigation. The interaction of the lan­
guage proficiency order and the desegregation requirements is dis­
cussed infra.



B41

Schools with not less than Schools with not less than
20% Black faculty in 1983- 20% Hispano faculty in 1983-
84 (% Black faculty in dis- 84 (% Hispano faculty in
trict = 13.79%) district = 9.67%)
Amesse 36.0% — Bryant-Webster 40.7% #
Ford 36.0% — Fairmont 34.6% #
Teller 35.7% Crofton 33.3% #
Stedman 35.0% * Gilpin 33.3% #
McGlone 32.0% — Del Pueblo 33.1%
Ebert 30.8% #
Oakland 30.8% — Greenlee 29.4% #

Columbian 25.0%
Wyman 30.0% # Fairview 22.2% #
Cole 29.2% # Smedley 21.7% #
Montclair 28.6% Edison 21.4%
Barrett 27.3% * Valdez 20.6%
Smith 26.9% *
Whiteman 26.3%
Park Hill 25.9% *
Smiley 25.0% *
Swansea 23.8% #
Palmer 23.1%
Montbello 22.7% —

Columbine 22.7% #
Hallett 22.7% *
Harrington 22.7% #
Holm 22.2%
Gilpin 22.2% #
Carson 22.2%
Mitchell 21.4% #
Grant 21.2%
McMeen 21.1%
Cowell 21.1%
Asbury 20.0%
Philips 20.0% *
Samuels 20.0%
Manuel 20.0% #
* Park Hill schools
# Core city schools
-  New schools built in Montbello area since 1973.



B42

Comparing the same variables for the schools with an 
assigned allocation of Anglo faculty greater than 88% indi­
cates that many of these schools, marked below with a 
“ + ” , are located in extreme south and southwest Denver.
Newlon
Force
Remington
T. Jefferson
Cheltenham
Sabin
Kennedy
Henry

89.74% 
89.74% 
89.47% 
89.25% + 
88.89% 
88.89% + 
88.75% + 
88.37% +

Using an upper limit of 50% above the district average 
for Black and Hispano teachers, in 1983-84 there were 28 
schools which exceeded that limit for Black teachers, and 
21 schools which exceeded that limit for Hispano teachers.

Dr. Charles Willie, an expert witness called by the plain­
tiffs, examined the current distribution of the District’s 
teachers and determined that the Black teachers within 
the Denver School System were not randomly distributed 
in a way that would be similar to their proportion in the 
total district. Using a deployment criterion of + Va of the 
District average for Black and Hispano teachers, Dr. 
Willie testified that in the 1983-84 school year there were 
approximately 35 schools in Denver in which the propor­
tion of Black teachers was greater than Va of the district­
wide percentage. There were approximately 33 schools, 
or 63% of the schools in the district, in which the pro­
portion of Black teachers was smaller than Va of the dis­
trict-wide percentage. Similar results were obtained for 
Hispano teachers. Dr. Willie opined that the Denver 
School System needs clearer and more specific guidelines 
because its good faith efforts have not enabled it to deploy 
its teachers to avoid racial identification of schools.



B43

Dr. Willie also testified that while he was a member 
of the Compliance Assistance Panel, he recommended sev­
eral teacher deployment guidelines which the District 
could use. The District’s initial response was that the 
court never ruled on the guidelines for the hiring, reten­
tion and deployment of teachers, and because the court 
had never ruled on that issue, the School System was not 
inclined to institute such requirements voluntarily. From 
the totality of the evidence, this court finds that the 
District has tended to interpret the Decree’s mandate for 
minimum percentages of minority teachers as the maxi­
mum for schools with large Anglo enrollments and has 
failed to place any maximum minority percentages for the 
schools with large minority pupil populations. The conclu­
sion is that there is a sufficient residue of segregation 
in faculty assignments to deny a finding that the District 
has been desegregated in that respect.

Hardship Transfers

Both in the 1982 and the 1984 evidentiary hearings, the 
plaintiffs/intervenors have asserted that the “ hardship 
transfer” policy has functioned as the equivalent of a 
“ voluntary transfer” program resulting in resegregative 
effects on pupil assignments. The evidence on this point 
is somewhat limited by the recordkeeping practices of the 
District. While the application for a hardship transfer, 
made by the parents and processed through the school 
of assignment, requests information concerning race and 
the reason for the transfer, the effects of the transfer on 
the transferor and transferee schools are not reflected in 
the records kept in the school administration office where 
this process is completed. The principal reasons for hard­
ship transfers are babysitting in the elementary schools 
and work opportunities for students in high school. Be­



B44

cause a transfer will be given to the school nearest the 
residence of the babysitter, and to a high school closer 
to the work place, there is an obvious opportunity for 
manipulation by the transferors. That opportunity has pro­
vided the basis for the suspicions asserted by the plain­
tiffs who have pointed to some impact on schools such 
as Mitchell.

In response to interrogatories, the District provided 
data on the hardship transfers approved in the 1983-84 
school year by race or ethnicity into and out of each 
school. With this information, the plaintiffs’ expert witness 
computed the net effect of hardship transfers on the Anglo 
percentage in each school. The response to plaintiffs’ in­
terrogatories listed each school with a count of the trans­
fers into the school by race and the name of the transferor 
school. From this information, the witness calculated the 
total transfers into and out of a particular school by 
ethnicity and combined these figures to obtain a net 
change. The net effect on the percentage of Anglo 
students was computed by comparing the percentage of 
Anglos in a particular school without any transfers to the 
percent Anglo in the school with hardship transfers. The 
net Anglo change does reflect the overall effect on a par­
ticular school but does not indicate whether the change 
is due primarily to Anglo student transfers in or minor­
ity student transfers out.

The final results of this analysis show 17 elementary 
schools with an Anglo population which either increased 
or decreased by more than 1.5 percentage points due to 
hardship transfers, and 4 elementary schools with an 
Anglo percentage which changed by more than 3 points. 
There are no middle or senior high schools with a net 
Anglo change greater than 1.5 points. While the defen­
dants argue that in the context of the entire school system



B45

these changes are insignificant, a look at the particular 
schools involved is instructive and shows small scale ef­
fects which can be considered significant in light of the 
history of this case.

The four elementary schools with greater than a 3 point 
change in 1983-84 are Barrett, -4.02, Crofton, -5.48, 
Mitchell, -3.38, and Bromwell, +4.72. In 1983-84, all of 
these schools were outside of the accepted range for Anglo 
population. Barrett and Crofton would have been within 
the range without the hardship transfers. Since 1979-80, 
the percentage of Anglo students at Bromwell, which is 
not a paired school, has been steadily increasing and has 
varied between +7.3 and +13.5 percentage points above 
the range. Since 1983-84, Mitchell has been below the 
range by at least 6 points. Barrett, Crofton and Mitchell 
are formerly racially identifiable schools in the Park Hill 
or core city area. (In 1968, Barrett was 0.3% Anglo; Crof­
ton was 5.0% Anglo; Mitchell was 0.8% Anglo; and Brom­
well, which is located in central Denver, was 92.0% 
Anglo).

The middle and senior high schools with the greatest 
changes were Cole with a net Anglo decrease of 1.36%, 
and Manual with a net Anglo decrease of 1.35%. As a re­
sult of hardship transfers, there was a net increase of 22 
Black and Hispano students at Manual. Cole and Manual 
were the only junior and senior high schools in 1968 which 
were over 95% Black. From 1974 to 1982, the percentage 
Anglo in both Cole and Manual was between 50% and 
60%. In 1982, the percentage Anglo in Cole decreased to 
35% and dropped to 34% in 1983-84. The percentage Anglo 
at Manual remains at approximately 50%.

In commenting on the plaintiffs’ transfer analysis, the 
defendants’ witness, Dr. Ross, testified that in 1983-84, 
more minority than Anglo students received hardship or



B46

babysitting transfers, which indicates that the District is 
not permitting such transfers to be used to avoid the de­
segregation plan. In 1983-84, there were a total of 1674 
transfers granted, including 679 Anglo students, 515 His- 
pano students and 400 Black students. There also were 
a few transfers for Asian and Native American students. 
Expressed as percentages, there were 40.56% Anglo, 
30.76% Hispano and 23.89% Black student transfers. These 
percentages are nearly equal to the percentages of the 
total student population for these groups in 1983-84, which 
were 39.18% Anglo, 33.33% Hispano and 22.72% Black. No 
conclusion can be drawn from the aggregate distribution of 
student transfers among Anglos, Blacks and Hispanos.

The District also argues that the plaintiffs’ data do not 
show whether the transfers which resulted in Anglo loss 
in the identified schools had a positive effect on the ethnic 
composition of the sending school. A look at the individual 
data for Bromwell shows that the students who trans­
ferred into Bromwell were almost exclusively Anglo stu­
dents. Thirty-one of the 34 transfers into Bromwell were 
Anglo students, and 13 of the 31 students transferred 
from the core city and Park Hill schools—Crofton, Fair­
mont, Harrington, Smedley, Smith, Stedman and Whittier- 
identified by the Supreme Court in Keyes.

Bromwell may be atypical. There is no other school with 
such a large net increase in Anglo population due to trans­
fers. Yet the fact that the schools with the largest net 
changes are the schools which have historically been the 
racially identifiable schools is some evidence that for those 
schools the hardship transfer may have been used to avoid 
the desegregation plan.

The District has done the minimum required in keep­
ing records and maintaining the policy that it would refuse 
a transfer if the express reason given was “ race.”  The



B47

District has failed to monitor the system-wide effect of 
the transfers, leaving the decision to the principal of the 
receiving school. In fact, prior to the 1982 hearing, no rec­
ord of ethnicity was kept in the central card filing system. 
The plaintiffs’ analysis of 1983-84 transfer data appears 
to be the first such system-wide analysis, and it does 
reveal that the effects of transfers in certain schools are 
significant and are contributing to the racial identification 
of those schools. In addition, the schools affected are some 
of the schools initially at issue in this lawsuit.

While the resulting finding is that the plaintiffs’ data 
will not support the argument that the District has main­
tained an “ open enrollment” policy through hardship 
transfers, the evidence shows a lack of concern about the 
possibility of misuse and a lack of monitoring of the ef­
fects of the policy.

There has been no challenge to the manner in which 
the District has applied the facilities and physical re­
sources, and there is no contention that there has been 
any racial disadvantage operating in the extracurricular 
activities in the district.

THE FUTURE
The District seeks an order that not only would declare 

the school system unitary, but would vacate the perma­
nent injunction entered in this action and end this court’s 
jurisdiction over the matter. The law in the Tenth Cir­
cuit is that a district court must retain jurisdiction in 
these circumstances until it is convinced that there is no 
reasonable expectation that constitutional violations will 
recur.

We believe that the court, in exercising continu­
ing jurisdiction to achieve structural reform, cannot



B48

terminate its jurisdiction until it has eliminated the 
constitutional violation “ root and branch.” See Green 
v. County School Board, 391 U.S. 430 (1968). The 
court must exercise supervisory power over the mat­
ter until it can say with assurance that the unconsti­
tutional practices have been discontinued and that 
there is no reasonable expectation that unconstitu­
tional practices will recur.

Battle v. Anderson, 708 F.2d 1523, 1538 (10th Cir. 1983),
cert, dismissed, ____  U.S. ____ , 104 S.Ct. 1019 (1984)
(footnote omitted). The opinion in Battle cited Green as 
precedent in holding that the district court had not abused 
its discretion in retaining jurisdiction over Oklahoma state 
prisons although the constitutional violations had been 
eliminated.

Accepting the defendants’ argument that the modified 
1974 Final Judgment and Decree was a complete and ade­
quate remedy which the District has fully implemented, 
jurisdiction should continue because the record does not 
support a finding that there is adequate protection against 
resegregation. To the contrary, the court is compelled to 
conclude that resegregation is inevitable if the School 
Board follows state law.

Resolution No. 2228, modeled after the resolution in 
Spangler, reaffirms the commitment of the Board of 
Education to the operation of a unitary school system. 
Neither the resolution, nor the testimony of the individual 
members of the Board of Education, gives any indication 
of how that will be accomplished in the absence of con­
tinued “forced busing,” so long as the neighborhood school 
concept is preferred and the neighborhoods are not inte­
grated. But, as the plaintiffs have observed in their brief, 
the Constitution of the State of Colorado expressly pro­
hibits the use of such busing in the following language 
of the “ anti-busing”  amendment, adopted in 1974:



B49

No sectarian tenets or doctrines shall ever be taught 
in the public school, nor shall any distinction or classi­
fication of pupils be made on account of race or color, 
nor shall any pupil be assigned or transported to any 
public educational institution for the purpose o f achiev­
ing racial balance.

Colo. Const. Art. IX, § 8 (emphasis added).
That is the organic law of the State of Colorado, and 

it is directly in conflict with the pupil assignment plan 
now in effect in the Denver School system. If the court’s 
jurisdiction is removed it must be presumed that the 
members of the Board of Education, under the oath re­
quired of them by state law, will obey this requirement 
of the state constitution, and dismantle the entire pupil 
assignment plan. To this argument, the District has made 
no response in the reply brief. This constitutional provi­
sion, standing alone, makes this case far different from 
the Spangler decision upon which the District so heavily 
relies. Putting the point simply and directly, it is the 
authority of this court, under the supremacy clause of the 
United States Constitution, that permits the operation of 
the Denver public schools under the existing plan which 
would otherwise be a clear violation of the Colorado Con­
stitution and in the absence of that plan, the system would 
be dual.

Above and beyond this legal impediment to maintaining 
a unitary school system, there is nothing before the court 
to give any assurance that the Board of Education will 
not permit resegregation to occur as a result of benign 
neglect. The District has done nothing to establish any 
means for monitoring operations to assure the avoidance 
of racial disadvantage. There is no clear commitment to 
the use of the guidelines prepared by the Ad Hoc Com­
mittee and adopted by the Board. In this regard, the



B50

court has some concern about the defendants’ response 
to the contentions made in the intervenors’ brief. Essen­
tially, that response is that these are matters which are 
outside of this litigation. Yet these concerns about the 
effects of discriminatory attitudes on academic achieve­
ment, discipline and dropouts are the very core of the 
whole matter of segregative policy in education as a viola­
tion of the United States Constitution. It is true that 
there is nothing in the law which does or could require 
equality in the results of educational services. But, since 
the sociologists tell us that sanctioned discrimination has 
these adverse effects on the individuals within the affected 
groups, the existence of disparate results suggests the 
possibility that continued discriminatory practices are 
present. It was to address these matters that the court 
offered the services of the members of the Compliance 
Assistance Panel. There is cause for concern about com­
mitment when the Board and administrative staff seem 
to have not only rejected, but scorned such an effort at 
assistance in a difficult task.

In the defendants’ briefs, much is made of the argu­
ment that findings in this case are based on broad consti­
tutional principles rather than narrow statutes. That is 
true in a technical legal sense. Yet, as the courts have 
considered cases under the civil rights acts, both those 
adopted shortly after the approval of the Fourteenth 
Amendment to the United States Constitution, and those 
of more recent vintage, it is increasingly apparent that 
Congress has sought to assist in making the principle of 
equal protection of the laws a more practical and workable 
doctrine by giving it more specific definition in such areas 
as employment, voting and participation in publicly funded 
programs. Thus there is an observable convergence of con­
stitutional principle and statutory prohibition. It may well 
be that in future school desegregation litigation, the con­



B51

cepts of “ disparate treatment” and “ disparate impact,” 
so well known in employment cases, will come to be the 
focus of attention.6

It is paradoxical that the defendants’ presentation to 
this court in support of the subject motion has placed such 
heavy emphasis on the use of statistical displays to dem­
onstrate the establishment of a unitary system when the 
thrust of the Spangler decision is to decry the rigidity 
of defining desegregation according to any fixed racial 
ratio. Both in 1979 and in 1982, this court emphasized the 
importance of recognizing that establishing and maintain­
ing a unitary school system requires more than meeting 
a statistically satisfactory pupil assignment plan. The ex­
pert testimony in this case concerning the use of racial 
balance and racial contact indices, and the differing con­
clusions reached by the experts called by the respective 
parties, demonstrate once again the facility with which 
numerical data may be manipulated and discriminatory 
policies may be masked.

The plaintiffs/intervenors have strongly suggested that 
the Board of Education acted in bad faith in adopting 
Resolution No. 2228 in December, 1983 after giving this 
court and the parties assurance in a hearing memorandum 
filed April 15, 1983, that the District was following the 
Ad Hoc Committee guidelines in planning for pupil assign­
6 Disparate impact and disparate treatment are alternative 
theories for relief under Title Vll, 42 U.S.C. §§ 2000e-2000e-17. 
“ While proof of discriminatory motive is necessary under a 
disparate treatment theory, such proof is not required under a 
disparate impact theory. (Citation omitted) For the latter, it is 
enough that the employment practices had a discriminatory effect.” 
(Emphasis in original). Williams v. Colorado Spring, Colorado 
School District No. 11, 641 F.2d 835, 839 (10th Cir. 1981). See also
Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), cert, denied,____
U.S. ___ _, No. 84-1200 (May 20, 1985); Gay v. Waiters’ and Dairy
Lunchmen’s Union, Local No. 30, 694 F.2d 531 (9th Cir. 1982).



B52

ments for 1984 and subsequent years. The plaintiffs also 
cite the testimony of School Board members from the trial 
that after the May, 1983 School Board election, Board 
members determined that there would be no changes in 
the plan.

The issue of good or bad faith of those Board members 
is irrelevant. As the history of this case has shown, the 
philosophical and political views of the elected Board will 
vary as is to be expected in representative government. 
Indeed, remembering that this case began when a Board 
resolution was repealed by a succeeding Board, little reli­
ance can be placed upon Resolution No. 2228, or any other 
resolution, as directing future boards. What must be ac­
complished in constructing the final and ultimate perma­
nent injunction in this case is the creation of means and 
mechanisms to prevent any future policy of discrimination, 
whether it results from intentional governmental action 
or simply in consequence of a policy of disregard or per­
missive passivity.

The District has made a very expansive interpretation 
of the Supreme Court’s Spangler opinion. The contention 
is that once a district has implemented an adequate de­
segregation plan and has maintained it for a reasonable 
period of time, it is entitled to be freed from further court 
jurisdiction even if resegregation occurs in the sense that 
schools become racially identifiable, if that result obtains 
from “ demographic changes”  and not because of official 
board action. The point is emphasized because under 
Swann there is no right to a particular degree of racial 
balance in each school. The fundamental error made by 
the district court in Spangler was the imposition of the 
rigid requirement that there be “no majority of any minor­
ity” in any school in perpetuity. The language of the ma­
jority opinion in Spangler can be read to support the 
defendants’ contention. Yet, Spangler must be read in con­



B53

text with Green and Swann, as well as the language in 
the later cases of Dayton II and Columbus Board o f Edu­
cation v. Penick, 443 U.S. 449 (1979). As the defendants’ 
counsel have noted, the Supreme Court has not clearly artic­
ulated the time and manner within which a school deseg­
regation case should be closed. Additionally, the Court has 
never defined “ unitary.” In this case, the School Board 
itself has been cooperative with the court in constructing 
a working definition of that concept by the adoption of 
the Ad Hoc Committee report and its guidelines, which 
this court approved in the 1982 opinion, and which the 
Board has again recognized in Resolution No. 2228.

What is of first importance in considering whether 
Spangler requires this court to terminate this case at this 
time is whether the Denver Public School System was 
unitary for the years 1976 through 1979. That, in turn, 
depends upon whether it is appropriate to parse the 
criteria in Green, and this court’s own definition of 
unitariness, to separate out pupil assignments from the 
other elements.

The measure of the adequacy of any desegregation plan 
is its effectiveness. It would be inappropriate to consider 
that a pupil assignment plan which simply establishes cer­
tain outside percentage limits for minority and Anglo stu­
dents is, by itself, an effective elimination of the effects 
of prior segregative policies. That is why the Green case 
emphasized the other components of desegregation. In this 
case, it is this court’s finding that there has not been an 
effective faculty assignment plan and, therefore, that omis­
sion by itself prevents the declaration that unitariness has 
been achieved.

Beyond that, it is this court’s view that dicta in Dayton 
II and Columbus strongly suggest a more limited reading 
of the prohibition in Spangler. Thus, Justice White, in



B54

writing for the majority in Columbus, restated the propo­
sition from Swann that school construction and abandon­
ment practices cannot be used to perpetuate or reestablish 
a dual school system. In Dayton II, Justice White, again 
writing for the majority, said that pupil assignment plans 
are also not to be used to perpetuate or reestablish dual 
school systems.

It was the need to close four elementary schools and 
the change of educational policy to convert junior high 
schools to middle schools that brought the District back 
to this court in 1982. Those changes, of course, required 
a redetermination of the pupil assignment plan, and that 
was done in the Consensus Plan. The resegregative effects 
of the Consensus Plan are brushed aside by the District 
with the claim that this is another illustration of the white 
flight phenomenon after a court order reassigns attend­
ance zones. This court is not persuaded that this proposi­
tion has been demonstrated by the evidence. As earlier 
noted, there appear to be flaws in the data which have 
been submitted on the subject of white flight. But, assum­
ing white flight, the community response to a desegrega­
tion plan is an element in measuring its effectiveness. In­
deed, that was the reason that Judge Doyle appointed the 
Community Education Council as a monitoring committee 
to help the School Board obtain community acceptance. 
It is, therefore, no answer that any resegregation was not 
the fault of the School Board.

It is also an inappropriate response to contend that this 
resegregative effect cannot be considered because the 1982 
opinion approved the Consensus Plan. The record is clear 
that the approval then given was with reservations and 
that the rejection of the plaintiffs’ alternative proposals 
was a concession to the plea for “ stability” and the avoid­
ance of more disruption, recognizing that the District was 
then working on future planning.



B55

While it is true that this has not been a case in which 
there has been an effort to develop “ step at a time plan­
ning,”  it is also true that until the filing of the subject 
motion, the record in this case showed that all parties 
and the court were working with the premise that long- 
range planning was required, and that some final injunc­
tive order would enter. As already noted, this court ex­
plicitly stated in its 1982 Opinion that the District had 
not become unitary.

It is clear from the testimony of the School Board mem­
bers that the idea that desegregation had been achieved 
came from the work of a consultant with expertise in sta­
tistical analysis. The data developed in that study per­
suaded the Board that desegregation had occurred when 
measured by the racial balance and racial contact indices. 
The argument that desegregation is therefore demon­
strated is just as facile and unrealistic as the rejected 
view of the district court in Spangler.

The testimony of the Board members also makes it clear 
that their motive in seeking a termination order is the 
sincere belief that the school system will benefit by re­
moving a “ stigma” that they believe has attached to it 
from the court’s involvement. It is said that the neces­
sity to come to the court for approval has inhibited cre­
ative planning and new educational development. While 
that may be the perception of many, there is no support 
for it in the record of this court’s involvement. In 1979, 
the Board was encouraged to pursue new initiatives. The 
Knight Fundamental School and Gilpin Extended Day 
School have received the court’s approval and the com­
munity response has been enthusiastic as this record 
shows. There has never been any effort to suppress new 
and innovative developments, and this court has never 
sought to impose any educational policy. Indeed, in re­



B56

jecting the request to choose between the Total Access 
Plan and the student assignment plan, the court again 
took pains to point out the differing roles and respon­
sibilities of the Board of Education and this court.

It is disturbing to hear the views that stigma, punish­
ment and trauma are involved in the processes of this 
court in this case. It is true that the case has been here 
for almost a decade, but it is also true that the effort 
has been to reverse the effects of segregative actions for 
a similar time. The notion that this court has sought to 
punish this Board of Education, this staff and the children 
now in the Denver School System, for past practices is 
simply wrong. What the court seeks, and what the Con­
stitution demands, is assurance that minority people will 
not be disadvantaged in the opportunity for education. 
Thus, it is not punishment, but protection, that is the ob­
jective.

This court has carefully considered Resolution No. 2233. 
That resolution, adopted in April, 1984, after the filing 
of the subject motion, is a declaration of policies which 
the Board intends to follow upon termination of additional 
supervision. Among those policies is the statement that 
“ there shall be no sudden alteration of the court-approved 
school assignment plan then in effect.” It is this commit­
ment which is directly contradictory to the prohibitions 
of the State Constitution and, as indicated earlier, the 
reply brief filed for the School Board did not even ad­
dress this legal dilemma. The resolution also indicates the 
Board’s continuing interest in neighborhood schools with 
the following paragraph:

The Board of Education, believing that the bene­
ficial effects of integration are most fully realized in 
stably integrated neighborhood schools, shall preserve 
contiguous attendance zones for schools that are in­



B57

tegrated and shall establish contiguous attendance 
zones whenever it appears that stable integration can 
be maintained in the schools serving such areas.

What is not indicated is whether the Board would pro­
ceed if the establishment of contiguous attendance zones 
to serve “ stably integrated neighborhood schools” has a 
resegregative effect on other schools, as measured by 
pupil assignment ratios. Other aspects of Resolution No. 
2233 were discussed in the testimony of Board members, 
and a fair summation of that testimony is that many mat­
ters would have to be studied before detailed implemen­
tation of all of the paragraphs of the Resolution could be 
achieved.

It is also interesting to consider the language of para­
graph 2 of the Resolution:

This Board, the District, and officers and employees 
of the District shall not adopt any policy or program, 
institute any practice or procedure, or make or carry 
out any decision for the purpose of discriminating 
against any person by reason of race, color, or ethnic 
identification.

The paragraph can be considered a statement of inten­
tion to avoid acts taken with discriminatory intent. It does 
not indicate that the Board, the District and its officers 
and employees will take any action to avoid any discrim­
inatory impact of any policy or program. In the testimony 
of School Board members, there is, again, the complaint 
that the necessary planning and policy development sug­
gested in the Resolution could not take place under court 
supervision. Again, the record in this case is to the con­
trary. In the 1979 Order, this court expressly encouraged 
innovative and creative thinking by the Board, and indi­
cated a willingness to consider changes. Indeed, the 1982 
Order did approve the change to middle schools even



B58

though that change had what the court hoped would be 
a temporary resegregative effect on the elementary 
schools. Put simply, there is nothing in Resolution No. 
2233 that the Board could not accomplish while still under 
the supervision of the court, and certainly nothing that 
could not be accomplished with a permanent injunctive 
order in effect.

The Board’s brief adopts language from the Ninth Cir­
cuit in Spangler v. Pasadena City Board o f Education, 
611 F.2d at 1240, to ask this court to address the basic 
question at this stage in this case: “ If not now, and on 
this showing, when, and on what showing?”  Because the 
court has answered the first part of that question in the 
negative, it is appropriate to give some guidance with re­
spect to what this court believes the proper showing 
would be, although this discussion must be prefaced with 
the caveat that trial courts do not give advisory opinions. 
The adversary process must be permitted to function in 
the remaining stages of this litigation.

The Denver Board of Education has obviously been ad­
vised that the controlling law on terminating jurisdiction 
in a school desegregation case is that Ninth Circuit Spang­
ler opinion which followed the Supreme Court’s opinion. 
That case was decided by a three judge panel with two 
separate opinions and one judge concurring in both of 
them. Without question, both the Supreme Court opinion 
and the subsequent Ninth Circuit opinion make it clear 
that there can be no permanent injunction requiring a 
district to maintain any given degree of desegregation as 
measured by racial ratios in the schools. This court cer­
tainly agrees and has made the same statement in both 
the 1979 and 1982 opinions. Moreover, this court has no 
disagreement with the view that school desegregation 
cases like all other litigation must someday come to an



B59

end. In the 1982 opinion, this court urged the District to 
proceed with planning for the purpose of developing a 
final order which could bring this case to conclusion, and 
said the following:

The Denver Board of Education continued its positive 
response in May, 1980, when it adopted Resolution 
No. 2110, establishing an “ Ad Hoc Committee” to 
design a new student assignment plan and to develop 
both a definition of and guidelines for constructing 
a unitary school system. During subsequent hearings, 
I encouraged that undertaking and said that it was 
consistent with an orderly approach to creating the 
conditions and climate for concluding this litigation.

Keyes, 540 F. Supp. at 401.
This court has always recognized that the operations of 

a public school system, and the determination of the types 
and amount of educational services to be provided in it, 
are fundamentally matters of local self-governance. What 
the history of this case shows, however, is that each time 
the Denver Board of Education has been given the full 
opportunity to develop a pupil assignment plan which 
would avoid the racial identification of any schools, the 
Board has failed to perform that duty. The reason is self- 
evident. The total return to neighborhood schools through­
out the system under the residential patterns which have 
existed and now exist would inevitably result in the re­
segregation of some schools, particularly at the elementary 
level. Therefore, it is not possible to avoid forced busing 
of part of the pupil population, and because overwhelm­
ing public opinion in Denver is against forced busing, 
elected officials have refused to take responsibility for 
ordering it. It is politically convenient to continue to con­
tend that this contradiction of community will is the result 
of orders from a court which has misconstrued the law. 
The length of this opinion is warranted only for the pur­



B60

pose of once again making a full explanation of this court’s 
reasoning. While the court has been patient in the conti­
nuing efforts to persuade the parties and the public with 
respect to the law, it has also repeatedly expressed con­
cern that young people are being disadvantaged in the 
one opportunity even to them to obtain some level of 
educational achievement at public expense.

This court is now asked to rely on the good intentions 
expressed in Resolution No. 2233. In the Spangler opin­
ion, the Ninth Circuit judges correctly stated that when 
such resolutions are made as official acts, they are en­
titled to be viewed as a pledge made in good faith by 
the board members and the people they represent. The 
court does not doubt the good faith of members of the 
Board of Education and their intention to follow the law. 
The doubt is with respect to their understanding of the 
law. That doubt is fueled by the testimony of some Board 
members who said that since people are and should be 
free to live in any neighborhood they choose, segregation 
in neighborhood schools is acceptable.7 That view is direct­
ly contrary to the Brown decision and would be a return 
to Plessy v. Ferguson.

Along with the assumption that the Board members will 
obey the law as they know it, the court must assume that 
these Board members will comply with the requirement 
of the Colorado Constitution that prohibits forced busing. 
How can this court assume that equal educational oppor­
tunity will be given to minority students in Denver, Col­
orado when the Board of Education officially proclaims 
a commitment to neighborhood schools while there are 
still segregated neighborhoods, and when the effective

7 Testimony of Board member Paul Sandoval, Tr. 913-918.



B61

means for integration will be denied them under the or­
ganic law of the State of Colorado?

Resolution No. 2223 and the testimony of Board mem­
bers have given vague allusions to increasing the use of 
magnet schools, and voluntary enrollment with special pro­
grams. It is that kind of speculation which caused the re­
jection of the Total Access Plan which was presented to 
the court with no provision for the kind of constraints 
required to protect against segregative effects. It may 
well be that through their creativity and industry, the 
Board and staff will develop plans and programs which 
can avoid segregative effects, meet the requirements of 
a unitary system under the court’s definition, and avoid 
conflicts with the Colorado Constitution. Such a showing 
with appropriate injunctive orders to assure continued 
effectiveness can certainly result in an order which could 
terminate this case. Nothing of the kind is in the pres­
ent record.

The demonstrated uncertainty about the requirements 
of the law in this case is exactly the reason that a final 
injunctive order is required to end it. As all counsel in 
this case and as many lower courts have observed, the 
Supreme Court has never defined a unitary school system 
with any specificity. That is not the function of the Su­
preme Court of the United States. It exists to give gen­
eral guidance on broad principles of constitutional law, and 
it is the work of the district courts, as trial courts, to 
apply those principles to the specific situation with specific 
orders. That was made clear in Brawn v. Board o f Educa­
tion, 349 U.S. 294 (1955) (Brown II), and it is also clear 
from opinions in the Fifth Circuit Court of Appeals, a 
court which has been called upon to attempt to articulate 
the bases upon which school desegregation cases can be 
ended.



B62

In testing whether the past has been eradicated so 
far as it remains in the power of school officials and 
courts to do so, we must keep in mind that each 
school district is unique. The constitutional mandate 
against racial discrimination is categoric, but the 
determination of remedies for its past violation turns 
on the conditions in a particular district. [Citation 
omitted.] In like fashion, the decision that public of­
ficials have satisfied their responsibility to eradicate 
segregation and its vestiges must be based on condi­
tions in the district, the accomplishments to date, and 
the feasibility of further measures.

Ross v. Houston Independent School Dist, 699 F.2d 218, 
227 (5th Cir. 1983).

The Fifth Circuit Court of Appeals requires a district 
court to retain jurisdiction over a school desegregation 
action for three years following the determination that the 
district is unitary to assure that the determination of uni­
tary status is not premature. During that time, the dis­
trict is required to file semiannual reports with the court. 
At the end of the three years, a hearing is held at which 
the plaintiffs may show cause why the case should not 
be dismissed. The district court then makes a final deter­
mination as to whether the district has achieved unitary 
status and may, at that time, dismiss the case. Ross, 
supra; United States v. Texas, 509 F.2d 192 (5th Cir. 
1975); Youngblood v. Board o f Public Instruction o f Bay 
County, 448 F.2d 770 (5th Cir. 1971).

If the present Board members who have been in this 
court and who have some working knowledge of the issues 
in this case are confused about what is required of them, 
certainly it can be expected that future Board members 
will fail to understand how particular decisions concern­
ing school construction, school closing, faculty assignments, 
transportation, facilities and extracurricular activities could



B63

have segregative effects because of the past policy in this 
particular district. Again, the court hopes that the re­
capitulation of the history of the case contained in this 
lengthy opinion will, itself, be of some value to decision 
makers in the future.

Contrary to the perception shown in the defendants’ 
reply brief, the proposed permanent injunction is not crim­
inal in its nature and need not, therefore, be as specific 
as may be indicated in some of the cases cited. The in­
junction is equitable and seeks to protect the constitu­
tional rights of persons yet unborn. It need not require 
particular ratios of pupil assignments to various schools, 
percentages of faculty ethnicity in schools, specific affirm­
ative action hiring plans, or even any commitment to trans­
portation. It is not required that there be any firm com­
mitment to neighborhood schools, magnet programs or 
other matters of educational policy. What will be required 
is the development of a structure within which these deci­
sions will be made by local government which will provide 
assurance that those who make such decisions will obtain 
necessary information, give an adequate opportunity for 
minority views to be heard, and act with concern for and 
commitment to the constitutional principles of equal edu­
cational opportunity. In this respect, what the court is 
requiring is something not unlike the stop, look and listen 
requirements of environmental policy legislation.

This court has implied and now makes explicit the view 
that the Ad Hoc Committee guidelines are a good work­
ing framework within which that kind of structure can 
and should be developed.

The plaintiffs have asked for a general injunctive order 
with certain provisions restricting some of the policies of 
the District. They also seek certain immediate remedial 
orders.



B64

During the period established for the briefing schedule 
at the conclusion of the evidentiary hearing on the sub­
ject motion, this court was informed by counsel that they 
were engaged in serious negotiations for settlement of this 
case. The briefing schedule was altered to accommodate 
that effort. It now appears appropriate, having determined 
that the District has not yet achieved a completely unitary 
status for the reasons set forth at length above, and the 
court having defined what is necessary, including the gen­
eral outline of a permanent injunction, that the court 
should provide a new opportunity for the parties to come 
together to develop an agreed order. It is hoped that 
negotiations will go forward and agreement will be reached 
just as the limited English proficiency issues were resolved 
after the entry of the court’s Memorandum Opinion de­
fining the applicable principles of law. In that regard, in 
accepting the stipulated program for limited English pro­
ficient students by the Order entered August 17, 1984, 
this court reserved for later decision the determination 
of methods for reporting on the implementation of that 
program and the question of continuing jurisdiction. That 
reservation was made to avoid any prejudging of the mat­
ter which is now being resolved by this opinion. Accord­
ingly* at this time both phases of this case converge, and 
the monitoring of the language program and continuing 
jurisdiction with respect to it will also be matters to be 
discussed in the negotiations which will be undertaken.

Recognizing that a recent election has been held and 
that there may be some uncertainty about how negotia­
tions may be conducted and to what extent counsel will be 
authorized to proceed with them, it would be unrealistic 
to set a specific timetable for that effort. Accordingly, the 
court will direct that counsel meet with the court to dis­
cuss the scope and course of negotiations.



B65

Upon the foregoing, it is
ORDERED, that the defendants’ motion to declare School 

District No. 1 unitary, to terminate jurisdiction, and to 
vacate or modify the 1974 Final Decree and Injunction 
is denied, and it is

FURTHER ORDERED, that counsel for all parties shall 
meet with the court in the court’s conference room for 
a discussion of the possibilities of negotiation and settle­
ment on June 28, 1985 at 1:00 p.m.

Dated: June 3, 1985

BY THE COURT:

Richard P. Matsch, Judge



Cl

APPENDIX C

[October 1985]
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. C-1499 
WILFRED KEYES, et al.,

Plaintiffs,
v.

CONGRESS OF HISPANIC EDUCATORS, et al.,
Plaintiff-Intervenors,

v.

SCHOOL DISTRICT NO. 1, et al.,
Defendants.

ORDER FOR FURTHER PROCEEDINGS

On January 19, 1984, the defendant, School District No. 
1, Denver, Colorado, filed a motion for orders (1) declar­
ing that the defendant School District is unitary, (2) modi­
fying and dissolving the injunction as it relates to the 
assignment of students to schools, and (3) declaring that 
the remedy previously ordered in this case to correct the 
Constitutional violation as found has been implemented, 
and that there is no need for continuing court jurisdic­
tion in this matter. The plaintiffs and plaintiff-intervenors



C2

opposed that motion, and asserted their own motion for 
remedial orders and continuing injunctive relief. After a 
full evidentiary hearing was held, this court made exten­
sive findings of fact and conclusions of law in the form of 
a Memorandum Opinion and Order entered June 3, 1985.

In summary, this court found that the 1974 Final Judg­
ment and Decree, as modified in 1976, did not complete­
ly remedy the constitutional violations found in the course 
of this litigation because it did not completely reverse and 
eradicate the effects of the official policy of geographical 
containment of black people in an area of northeast Den­
ver. This court also found that the defendant School Dis­
trict had not achieved unitary status because there were 
racially identifiable schools; the policies relating to “hard­
ship” transfers and the monitoring thereof were inade­
quate to assure that there were no segregative—effects 
at either the transferee or the transferor schools; there 
was a failure to comply with paragraph 19A of the 1974 
Decree relating to the assignment of minority faculty, and 
with regard to the over-representation of minority faculty 
in formerly segregated minority schools with under-repre­
sentation in formerly segregated anglo schools; and, final­
ly, the School District had failed to take any meaningful 
action to provide any reasonable expectation that constitu­
tional violations will not recur in the future after this case 
is closed.

After making these findings and conclusions, this court 
did not order any corrective action and urged the par­
ties to seek a negotiated settlement of the remaining 
issues. That effort has continued and, on October 4, 1985, 
counsel for the parties advised the court that they had 
failed to reach a resolution acceptable to all parties. Ac­
cordingly, this court must now act. Because compliance



C3

with the law as interpreted in this litigation involves 
determinations of educational policy within the sole au­
thority of the Board of Education, the defendant Board 
should now be required to submit plans for achieving uni­
tary status as that has been defined in this court’s Memo­
randum Opinion and Order of May 12, 1982 (540 F.Supp. 
399), and to provide reasonable assurance that future 
Board policies and practices will not cause resegregation. 
The particular matters to be addressed are as follows:

1. The identification o f Barrett, Harrington and Mit­
chell elementary schools as schools for minority children.

The construction of Barrett Elementary School in 1960 
in a black neighborhood was one of the most obvious in­
dications of the former policy of racial segregation in the 
Denver school system. Throughout this entire litigation 
it has remained a racially-identifiable school, and the adop­
tion of the Consensus Plan had further segregative effects 
at that school. Mitchell Elementary School has also ex­
isted as an identifiable minority school throughout the 
years, and it, too, has been adversely affected by the Con­
sensus Plan, as has Harrington School. The trend toward 
racial isolation of these three schools was one of the plain­
tiffs’ and intervenors’ objections to the Consensus Plan 
and a primary reason for the reluctance with which this 
court accepted that plan as an interim pupil assignment 
plan. It is past time to integrate these three elementary 
schools into the Denver system.

2. The “hardship”  transfer policy.

While this court did not find that the hardship transfer 
policy amounted to an “ open enrollment” program as con­
tended by the plaintiffs and intervenors; there is suffi­
cient continuing doubt and suspicion about this program



C4

that the District should take action to articulate definite 
standards for such transfers, and to monitor the program 
to assure that these transfers do not have segregative ef­
fects on either the transferor or transferee schools.

3. Faculty assignments.

The District has never been in compliance with the re­
quirements of the 1974 Final Judgment and Decree relat­
ing to faculty assignments. The ambiguity in paragraph 
19A of that decree has now been resolved, and some re­
assignment of faculty is necessary. Additionally, this court 
has found that there has been a continuing failure to limit 
concentration of minority teachers in schools correlated 
to minority residential patterns. Some additional teacher 
deployment guidelines must be established to avoid any 
public perception that minority teachers should be as­
signed primarily to schools with heavy minority pupil pop­
ulations.

4. Plans for implementation o f Resolution No. 2233.

The defendant Board of Education has asked this court 
to rely on the good intentions expressed in Resolution No. 
2233 and return full responsibility for the protection against 
future resegregation to those who are elected to govern 
the District. In the June 3, 1985 Memorandum Opinion 
and Order, this court observed that the defendants did 
not put forth any detailed plans for implementing Resolu­
tion No. 2233 and, most particularly, the Board of Educa­
tion and its counsel failed to explain to this court how 
a non-segregative pupil assignment plan could be followed 
without a court order when any such plan would be in 
violation of the “ anti-busing” amendment to the Colorado 
Constitution, adopted in 1974 and incorporated in Article 
IX, Section 8 of the Colorado Constitution.



C5

Upon the foregoing, it is now
ORDERED that on or before December 2, 1985, the 

defendants will file with this court plans which address 
the foregoing matters, and the plaintiffs and plaintiff-in- 
tervenors shall have to and including December 16, 1985 
within which to file objections to or to file alternative 
plans on such matters, and the disagreements among the 
parties will be the subject of further hearings in this 
court.

Dated: October 1985

BY THE COURT:

Richard P. Matsch, Judge



D1

APPENDIX D

[ F e b r u a r y  25, 1987]
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. C-1499 
W ILFR E D  KEYES, et al.,

Plaintiffs,

CONGRESS OF HISPANIC EDUCATORS, et al.,

Plaintiff-Intervenors,
v.

SCHOOL DISTRICT NO. 1, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

On June 3, 1985, this court issued a Memorandum Opin­
ion and Order (“June 1985 Opinion” ) denying the defen­
dants’ motion of January 19, 1984. That motion requested 
an order declaring that School District No. 1 is unitary, 
an order modifying and dissolving the existing injunction 
relating to the assignment of pupils to schools, and an 
order declaring that this court’s remedial orders have 
been fully implemented and there is no further need for 
continuing court jurisdiction. After the parties reported 
that their extensive efforts to reach a negotiated settle­



D2

ment of the remaining issues had failed, this court entered 
an Order For Further Proceedings on October 29, 1985 
(“ October 1985 Order” ). That order directed the defen­
dant to submit plans for achieving unitary status as de­
fined in this court’s Memorandum Opinion and Order of 
May 12, 1982, Keyes v. School Distinct No. 1, Denver, Col­
orado, 540 F. Supp. 399, 403-04 (D. Colo. 1982), and to 
provide reasonable assurance that future Board policies 
and practices will not cause resegregation. The court di­
rected that four particular matters be addressed: (1) the 
identification of Barrett, Harrington and Mitchell elemen­
tary schools as schools for minority children, (2) the “hard­
ship” transfer policy, (3) faculty assignments, and (4) plans 
for implementation of Resolution 2233.

The defendants appealed from the June 1985 Opinion 
and the October 1985 Order. Despite the appeal, the de­
fendants have responded to the court’s directions for fur­
ther proceedings, and the plaintiffs and plaintiff-intervenors 
(“plaintiffs” ) filed a reply on December 16, 1985. A hear­
ing was held on March 13, 14 and 15, 1986. Evidence was 
presented concerning the actions and plans set forth in 
the defendants’ response and supplemental response and 
plaintiffs’ alternative proposals.

The Defendants’ Responses

Barrett, Harrington and Mitchell Schools. The District 
seeks to increase the Anglo enrollment at Barrett, Har­
rington and Mitchell elementary schools by the use of 
special programs and educational enhancements. The Bar- 
re tt/Cory paired elementary schools are using a teaching 
method called the Whole Language Program, designed to 
increase emphasis on language development. An instruc­
tional computer program complements the curriculum. The



D3

Ellis/Harrington paired elementary schools use the Mas­
tery Learning Program, a prescriptive teaching method, 
and an instructional computer program. The Montessori 
Method has been started at Mitchell to improve the ef­
fectiveness of the Mitchell/Force elementary school pair. 
The District has also increased communication with par­
ents and is upgrading the physical appearance of these 
facilities to support the paired school concept.

Student Transfers. DPS Policy 1226D provides new 
procedures for the administration of parent-initiated trans­
fers from the school of assignment for day-care needs at 
the elementary level, and program needs at the secondary 
level. It also directs new record-keeping and analyses of 
the effects of such transfers. DX-D(86). The Assistant 
Superintendent has responsibility for granting or deny­
ing such applications, within stated restrictions on the ex­
ercise of discretion. The objective is to discourage requests 
for transfers that are not based on genuine necessity by 
obtaining independent verification of the need. Most im­
portantly, the new data collection and monitoring proc­
esses should enable the administration to evaluate any 
resegregative effects of the policy.

Faculty Assignment. A new policy on teacher assign­
ments has been implemented. It is stated as follows: 

POLICY ON TEACHER ASSIGNMENT
The District will continue to assign teachers so that 
the teaching staff at each school will reasonably re­
flect the racial/ethnic composition of the total teaching 
staff.
Beginning with the school year 1985, this shall mean 
that, to the extent practicable, the percentage of mi­
nority teachers, respectively, at each school shall be 
within one-third of the applicable elementary (1-6), 
middle (7-8), or high school (9-12), percentages. When



D4

the required minimum number includes a fraction, the 
minimum shall be considered to be the next higher 
integer.
It is recognized that fulfilling the requirements of the 
bilingual program will require departure from the 
above guideline in a number of schools and that avail­
ability of qualified teachers for particular positions 
is among the factors that may make achievement of 
the above goal impracticable in some instances.

DX-A(86).

Mr. Andrew Raicevich, Director of Personnel Services, 
testified that he has interpreted this statement to mean 
that the required percentage is the number of minority 
teachers at the respective levels compared to the total 
number of teachers at those levels, and that this percent­
age is applied as both a minimum and a maximum. Addi­
tionally, in the reply brief, the defendants have accepted 
the principle that “ rounding” of fractions should be sym­
metrical at both the lower and upper ends to keep the 
whole numbers within the specified range. The policy pro­
vides for adjustments necessary for the bilingual program.

Further Relief Sought By Plaintiffs
The plaintiffs do not object to the implementation of 

these programs and policies, but assert that they are in­
adequate to make the system unitary. Additionally, they 
request further relief, not only by providing more specific 
directions to implement the 1974 Decree but, also, the en­
try of new orders to remove all vestiges of past discrim­
ination and to protect against resegregation. They con­
tend that the evidence developed at the 1984 and 1986 
hearings supports the need for additional measures.



D5

Barrett, Harrington and Mitchell Schools. The plain­
tiffs’ witness, Dr. Stolee, expressed skepticism about the 
effectiveness of the Whole Language Program at Barrett, 
but he was enthusiastic about the Mastery Learning Pro­
gram at Harrington and the Montessori Program at Mit­
chell. The plaintiffs observe that only time will tell 
whether any of these programs will increase Anglo enroll­
ment. Their principal concern is the potential effect of the 
Montessori Program at Mitchell on Force, recognizing that 
as the program develops the non-Montessori pupils from 
Mitchell will be assigned to Force. Additionally, the plain­
tiffs suggest that the magnet program enrollments be con­
trolled to within plus or minus 15% of the elementary 
Anglo percentage, and that no transfers be allowed from 
schools where the effect would be to reduce the Anglo 
percentage below 10% of the elementary average.

Student Transfer Policy. The plaintiffs assert that the 
evidence at the 1986 hearing reinforces this court’s con­
cern about the segregative effects of the hardship transfer 
policy expressed in the June 1985 Opinion. Importantly, 
the District could not produce adequate data concerning 
the parent-initiated transfers, and Dr. Stolee presented 
an analysis, with exhibits, showing that fifteen formerly 
Anglo schools had their Anglo percentages increased by 
transfers, while fifteen formerly minority schools lost 
Anglos because of transfers. More than 10% of all elemen­
tary pupils attended schools other than their school of 
assignment through use of the transfer policy. The focus 
of the new policy is on the impact of the transfer on the 
receiving school, rather than on both the receiving and 
sending schools. It is not clear if the policy will be ap­
plied to the magnet programs. Only carefully monitored 
implementation of Policy 1226D will indicate whether it 
effectively prevents circumvention of the pupil assignment 
plan.



D6

Faculty Assignment. The plaintiffs contend that the 
continued over-representation of minority teachers at for­
mer minority schools and under-representation at former 
Anglo schools, even under the new policy, is attributable 
to the fact that reassignments are made in the late spring 
or late summer and not adjusted in the fall. Additional­
ly, they assert that the exclusion of kindergarten and 
special education teachers has no rational basis, and that 
the District has not presented sufficient data to justify 
the bilingual teacher exception.

Further Relief. The plaintiffs contend that either by 
modification of the existing remedial orders, or by the 
entry of new orders, this court should exercise its con­
tinuing jurisdiction to provide more specific directions on 
matters which go beyond the October 1985 Order. More 
particularly, they urge that this court direct the adoption 
of Dr. Stolee’s majority to minority transfer policy pro­
posal as the principal vehicle for the voluntary transfers 
into the magnet programs, and to eliminate the need for 
the hardship transfer policy. Dr. Stolee proposed that any 
Anglo pupil in a school with higher than the district-wide 
average Anglo percentage can transfer to any school where 
either the minority percentage is higher than the district­
wide average, or to any Anglo school which has a lower 
Anglo percentage than in the current school of attendance. 
Similarly, minority pupils in schools which are above the 
district-wide minority average can transfer to any school 
where the Anglo percentage is above the district average, 
or to any minority school having a lower percentage of 
minority pupils than the school of attendance.

The plaintiffs observe that although large scale changes 
in grade structure and building utilization have been dis­
cussed publicly, the District has never adopted any suit- 
ably detailed policies to assure that these changes will



D7

promote and not impede integration. They assert that the 
promises of Resolution 2233 are insufficient. The plain­
tiffs request that this court make specific orders for de­
tailed monitoring and reporting on the effects of the defen­
dants’ proposals. They also urge a clarification of the 1974 
Decree to require expressly that the Board eliminate con­
centrations of minority teachers in schools historically 
identified as minority schools. The plaintiffs seek controls 
to assure that implementation of the Language Consent 
Decree does not impede the desegregation of students and 
teachers. Finally, the plaintiffs urge this court to state 
its views on the subject of permanent injunctive relief, 
and they suggest language to be included in such an 
order.

Resolution o f the Immediate Dispute
The 1974 Decree imposed court control over student 

assignments, use of facilities, faculty and staff employ­
ment, and many other aspects of the operation of the 
Denver School System. That degree of court involvement 
was necessary to fulfill the Supreme Court’s mandate to 
ensure that the School Board perform its “ affirmative 
duty to desegregate the entire system ‘root and branch.’ ” 
Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 
189, 213 (1972) (quoting Green v. County School Board, 
391 U.S. 430, 438 (1967)). Essentially, the plaintiffs urge 
this court to continue such close supervision until the tran­
sition to a unitary school system is complete with ade­
quate measures to prevent resegregation. The defendants 
view the court’s continuing role as stifling and stigmatic. 
This court made specific findings on the District’s failure 
to achieve unitary status and the reasons for continuing 
jurisdiction in the June 1985 Opinion. While the District 
responded positively to the October 1985 Order, the defen­
dants have not proved that the objectives will be achieved.



D8

The defendants recognize the uncertainty and, essential­
ly, ask this court to rely on the Board of Education, the 
administrative staff, the faculty and the community to 
take the necessary action. The defendants’ position is that 
Resolution 2233, discussed extensively in this court’s June
1985 Opinion, is an adequate basis for assuring that race, 
color and ethnicity will not be impediments to obtaining 
the benefits offered by the Denver Public Schools.

This court cannot determine the effectiveness of the pro­
grams for increasing Anglo population at Barrett, Harring­
ton and Mitchell Schools from the evidence at the March,
1986 hearing. The defendants have not demonstrated that 
the new transfer policy and faculty assignment plan will 
produce the required results. There is ample reason for 
the plaintiffs’ continued skepticism about the concern, com­
mitment and capacity to achieve and maintain a unitary 
School System in Denver. The only comprehensive plan 
developed by the Board of Education was the “ Consen­
sus Plan”  which this court approved reluctantly in 1982. 
That plan was adopted only after rejection of the irrespon­
sible Total Access Plan, and the Board’s ability to arrive 
at its own consensus was undoubtedly affected by the need 
to close nine schools and establish the middle school pro­
gram. While the magnet programs for Knight Fundamen­
tal Academy and the Gilpin Extended Day Care Center 
have been successful, the Consensus Plan had resegrega- 
tive effects on Barrett, Harrington and Mitchell Schools.1

1 The plaintiffs have called attention to this court’s erroneous 
statement in the October 1985 Order that both Mitchell and Bar­
rett remained racially identifiable throughout this litigation. As 
shown by the evidence at the 1984 and 1986 hearings, Barrett was 
integrated by the 1976 Decree and Mitchell nearly so. Both schools 
were segregated by the Consensus Plan as this court found in the 
1985 Opinion, 609 F. Supp. 1491, 1507.



D9

The resegregative effects could easily be remedied by 
additional adjustments in the student assignment plan as 
the plaintiffs have suggested. The District has chosen not 
to take that approach, reasoning that such changes have 
a destabilizing effect on the community resulting in re­
duced support for the public schools. This court accepts 
that assessment and encourages the effort to use alter­
native means. It is precisely because the Board has se­
lected the more subtle methods for inducing change that 
this court must retain jurisdiction to be certain that those 
methods are effective.

Despite disagreement with this court’s conclusion that 
the District has not achieved unitary status, the defen­
dants have made a sincere and strenuous effort to meet 
the requirements of the October 1985 Order. Consider­
ing that effort, and accepting the declarations of Resolu­
tion 2233 as official District policy, this court now deter­
mines that it is time to relax the degree of court control 
over the Denver Public Schools, and to reduce the court’s 
role in the operation of the District. The plaintiffs con­
tend that there is institutional bad faith, and the history 
of the case casts a shadow of doubt over the Board’s 
statement of intentions in Resolution 2233. This court has 
consistently recognized the importance of local autonomy 
in matters of educational policy and administrative judg­
ment. The Board and administration must have sufficient 
freedom to make adaptations to enhance the effectiveness 
of the new programs and to accommodate changed circum­
stances. With that freedom goes the responsibility to meet 
the requirements of federal law. The degree of court con­
trol depends upon the extent of compliance with that duty.

This court rejects the request of the plaintiffs to im­
pose the data collection, monitoring and reporting require­
ments set forth in the plaintiffs’ post-hearing brief. It is



DIO

this court’s expectation that the District will accomplish 
data collection and monitoring on its own. The Board and 
administration must be able to demonstrate the existence 
of equal educational opportunity for all students in the 
system.

The plaintiffs’ suggestions for controls on the magnet 
program participation, adoption of the majority to minority 
transfer proposal, timing of teacher reassignments and in­
clusion of kindergarten and special education teachers in 
the teacher assignment policy are rejected at this time. 
The court accepts the defendants’ contentions that there 
are adequate administrative and educational policy reasons 
for refusing these suggestions and that the objectives can 
be achieved without them. After a reasonable time, the 
District will be required to return to court to prove that 
it has performed its duty. If it fails, these and other sug­
gestions will be considered.

The Future
A corollary to the decision to reduce court control over 

the District’s activities is the conclusion that the process 
of constructing a final order of permanent injunction should 
go forward. The defendants have resisted this effort for 
the reasons urged in the motion to vacate the existing 
injunctive orders and to release the District from juris­
diction. Although that issue is on appeal, this court must 
proceed for several reasons.

First and foremost is the conviction that a final order 
of permanent injunction is the logical conclusion of this 
lawsuit because this court has the responsibility to define 
the duty owed to the plaintiffs by the defendants. Like 
any other litigation, that question must be decided in the 
context of an evidentiary record. That record reflects



D ll

changes which have occurred during the course of this 
lawsuit. Denver was a tri-ethnic community. It is now 
multi-racial. There have been adjustments in educational 
policy by the adoption of middle schools and magnet pro­
grams. Undoubtedly, new approaches to enhancing the 
quality of education will involve alterations of the struc­
ture of the Denver School System. It can be expected 
that these changes will generate controversy and the 
Board of Education will make difficult decisions. In the 
absence of some workable definition of a unitary school 
system, those decisions will generate new charges of dis­
criminatory impact and disparate treatment.

A specific definition of a unitary school system for 
Denver, Colorado has evolved in this case. It was first 
proposed by the Ad-Hoc Committee established by the 
Board in 1980, and it was expressly adopted by this court 
in June, 1982, as follows:

A unitary school system is one in which all of the 
students have equal access to the opportunity for 
education, with the publicly provided educational re­
sources distributed equitably, and with the expecta­
tion that all students can acquire a community de­
fined level of knowledge and skills consistent with 
their individual efforts and abilities. It provides a 
chance to develop fully each individual’s potentials, 
without being restricted by an identification with any 
racial or ethnic groups.

Keyes v. School District No. 1, Denver, Colorado, 540 F. 
Supp. at 403-404. The court considers the guidelines de­
veloped by the Ad-Hoc Committee as useful criteria for 
determining the existence of a unitary system.

A final injunctive order is also necessary because of the 
proscription against student transportation to achieve ra­
cial balance contained in the Colorado Constitution, Art.



D12

IX, § 8, adopted in 1974. The defendants assert that this 
provision is invalid because it conflicts with the United 
States Constitution. But this section is not facially invalid. 
One can conceive of a school district in which methods 
other than mandatory student assignments may avoid ra­
cial segregation, but that it is certainly not true in Den­
ver, Colorado. Some amount of student transportation is 
required to operate and maintain a unitary school system 
in Denver because there are segregated residential neigh­
borhoods. Without a federal court order, any student as­
signment plan involving mandatory assignment or trans­
portation of students would be subject to new attack 
under the state law. The Colorado Constitution cannot be 
ignored by the Board, but its application may be enjoined 
by this court.

A permanent injunction is necessary for the protection 
of all those who may be adversely affected by Board ac­
tion. The Tenth Circuit Court of Appeals has recently em­
phasized and repeated the admonition that “ the purpose 
of court-ordered school integration is not only to achieve, 
but also to maintain a unitary school system.” Dowell 
v. Board o f Education, 795 F.2d 1516, 1520, cert, denied, 
55 U.S.L.W. 3316 (1986). Resegregation can occur as much 
by benign neglect as by discriminatory intent. A benefi­
ciary of a permanent injunction may come to court to en­
force the rights obtained in this litigation by showing that 
the injunctive decree is not being obeyed. Id. at 1521. “ To 
make the remedy meaningful, the injunctive order must 
survive beyond the procedural life of the litigation . . . ” 
Id. at 1521. The District may “ return to the court if it 
wants to alter the duties imposed upon it by a mandatory 
decree.” Id. at 1520.

The defendant has resisted the development of a final 
permanent injunctive order because the Board believes



D13

that it cannot bind future Boards. This court agrees. That 
is exactly why there must be a court order. Neither this 
Board, nor any future Board, can escape the history of 
this case.

Having rejected the plaintiffs’ request for the data col­
lection, monitoring and reporting requirements, this court 
will set a time for the defendant to make a further eviden­
tiary showing of the effectiveness of its plans and opera­
tions in achieving a unitary school system. The court and 
counsel must proceed to determine the specific contents 
of a final order of permanent injunction. Additionally, im­
mediate changes must be made in the existing orders. 
There is uncertainty about whether the plus or minus 15% 
ratio of the Finger Plan remains in effect. This court has 
not required that every school in the District maintain 
that ratio. The 1974 and 1976 Decrees emphasized num­
bers because that was the starting point. The specific 
pupil assignment plan adopted in the 1976 Decree is no 
longer operative. The monitoring commission has been re­
moved. There are some conflicts between the 1974 Decree 
and the Language Consent Decree. The ZB-III training 
program is outdated. Paragraphs 16 through 20 of the 
1974 Decree are no longer appropriate.

Accordingly, the court will meet with counsel to discuss 
immediate modifications of the existing orders, a time for 
the District to prove the effectiveness of its programs, 
and a final order of permanent injunction.

Upon the foregoing, it is
ORDERED, that the defendants may proceed with the 

implementation of the plans and policies discussed in this 
opinion, and it is



D14

FURTHER ORDERED, that the plaintiffs’ alternative 
proposals and requests for further relief are denied, and 
it is

FURTHER ORDERED, that counsel will meet with 
the court on March 13, 1987 at 10:30 a.m., in the court’s 
Conference Room, Second Floor, Post Office Building, 
18th and Stout Streets, Denver, Colorado.

Dated: February 25, 1987

BY THE COURT:

Richard P. Matsch, Judge



E l

APPENDIX E

[O c t o b e r  6, 1987]
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. C-1499 
WILFRED KEYES, et al.,

Plaintiffs,
v.

CONGRESS OF HISPANIC EDUCATORS, et al.,
Plaintiff-Intervenors,

v.

SCHOOL District NO. 1, Denver, Colorado, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

MATSCH, Judge.
In the Memorandum Opinion and Order entered June 

3, 1985, Keyes v. School District No. 1, Denver, Colo., 
609 F. Supp. 1491 (D. Colo. 1985), this court determined 
that the remedial phase of this desegregation case had 
not been completed and, therefore, denied the defendants’



E2

motion to declare the District unitary and terminate juris­
diction. After the parties’ unsuccessful attempts to reach 
a settlement, an Order For Further Proceedings was en­
tered on October 29, 1985, directing the District to sub­
mit plans for achieving unitary status. The defendants and 
plaintiffs submitted their respective proposals for further 
remedial action, resulting in the Memorandum Opinion and 
Order of February 25, 1987, 653 F. Supp. 1536 (D. Colo.
1987). That decision recognized the plaintiffs’ and plaintiff- 
intervenors’ (plaintiffs) skepticism about the concern, com­
mitment and capacity of the defendants to achieve and 
maintain a unitary system in Denver, Colorado, given the 
history of this litigation. Nonetheless, this court refused 
to grant the further relief sought by the plaintiffs and 
accepted the defendants’ approach in the matters of: (1) 
Barrett, Harrington and Mitchell elementary schools, (2) 
the “hardship” transfer policy, (3) faculty assignments, and
(4) plans for implementation of Resolution 2233. Addition­
ally, this court rejected the plaintiffs’ proposed data col­
lection, monitoring and reporting requirements, relying on 
the defendants to establish and implement sufficient data 
collection and monitoring to demonstrate the effectiveness 
of their proposals when called upon at an appropriate time.

This court also looked to the future and recognized the 
need for modification of the existing court orders to relax 
court control and give the defendants greater freedom to 
respond to changing circumstances and developing needs 
in the educational system. Accordingly, the parties were 
asked to submit proposals for an interim decree to replace 
existing orders. Those suggested modifications were re­
ceived and a hearing was held on June 24, 1987. The pro­
posals, the memoranda concerning them and the arguments 
of counsel at the hearing have been carefully considered.



E3

The essential difference between the parties in approach­
ing the task at hand is that the defendants have asked 
the court to establish standards which will provide guid­
ance for the District in taking the necessary actions and 
which will also provide a measurement for compliance. 
Thus, the defendants suggest that changes in attendance 
zones, assignments to schools, and grade-level structure 
from the student assignment plan in effect for the 1986-87 
school year not be made without prior court approval if 
the projected effect would be to cause a school’s minority 
percentage to move five percentage points or more further 
away from the then-current district-wide average for the 
level (elementary, middle or high school) than in the year 
preceding the proposed change. Additionally, the defen­
dants suggest that no new magnet school or magnet pro­
gram be established unless enrollment is controlled so that 
the anglo and minority enrollments, respectively, are at 
least 40% of the total enrollment within a reasonable time. 
The defendants also suggest that prior court approval must 
be obtained for any enlargement of existing school facil­
ities, construction of new schools, or the closing of any 
schools.

The plaintiffs contend that the defendants’ request for 
specific judicial directives demonstrates their reluctance 
to accept responsibility to eradicate the effects of past 
segregation, and to assure that changes in policies, prac­
tices and programs will not serve to reestablish a dual 
school system. The defendants’ reliance on the court cre­
ates doubt about their ability and willingness to meet the 
constitutional mandate of equal educational opportunity.

The injunctive decree must meet the requirements of 
Rule 65(d) of the Federal Rules of Civil Procedure and, 
yet, that requirement of specificity should not be permitted 
to stifle the creative energy of those who plan, supervise



E4

and operate the District, or to supplant their authority to 
govern. The task, therefore, is to develop a decree which 
strikes a balance between rigidity and vagueness. The prin­
cipal purpose is to enable the defendants to operate the 
school system under general remedial standards, rather 
than specific judicial directives. This interim decree removes 
obsolete provisions of existing orders, relinquishes report­
ing requirements, and eliminates the need for prior court 
approval before making changes in the District’s policies, 
practices and programs. The defendants are expected to 
act on their own initiative, without prior court approval, 
to make those changes in the student assignment plan of 
attendance zones, pairings, magnet schools or programs, 
satellite zones and grade level structure which the Board 
determines to be necessary to meet the educational needs 
of the people of Denver.

The interim decree is a necessary step toward a final 
decree which will terminate jurisdiction. The legal prin­
ciples involved continue to be those articulated by Chief 
Justice Burger for a unanimous Supreme Court in Swann 
v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 
(1971). The final decree will be formed under the guidance 
of Dowell v. Board o f Education o f Oklahoma City, 795 
F.2d 1516 (10th Cir. 1986). The timing of a final order 
terminating the court’s supervisory jurisdiction will be di­
rectly related to the defendants’ performance under this 
interim decree. It will be the defendants’ duty to demon­
strate 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 con­
cluded and a final decree will be entered to give guidance 
for the future.



E5

The defendants object to the use of the term “ racially 
identifiable schools” as too indefinite and express appre­
hension that this may be construed to mean an affirmative 
duty broader than that required by the Equal Protection 
Clause of the Fourteenth Amendment to the Constitution. 
This concern is eliminated by the requirement that racial 
identifiability or substantial disproportion must not result 
from the defendants’ actions. What is enjoined is govern­
mental action which results in racially identifiable schools, 
as discussed in Swann. In the evolution of the law since 
Brown v. Board o f Education, the Supreme Court has 
indicated in the opinions for the majority in Pasadena City 
Board o f Education v. Spangler, 427 U.S. 424 (1976), and 
in Dayton Board o f Education v. Brinkman, 433 U.S. 406 
(1977), that some discriminatory intent must be shown to 
prove a violation of the constitutional requirement that 
educational opportunity must be equally available. That 
intent is not, however, measured by the good faith and 
well meaning of individual Board members or of the per­
sons who carry out the policies and programs directed by 
the Board. The intent is an institutional intent which can 
be proved only by circumstantial evidence. What the Dis­
trict does in the operation of its schools will control over 
what the Board says in its resolutions. In the remedial 
stage of a school desegregation case, the court must be 
concerned with the affirmative duty to eradicate the ef­
fects of past intentional governmental discrimination. When 
unitary status is achieved, court supervision can be removed 
only when it is reasonably certain that future actions will 
be free from institutional discriminatory intent.

Upon the foregoing, it is now
ORDERED AND ADJUDGED:

1. The defendants, their agents, officers, employees and 
successors and all those in active concert and participation



E6

with them, are permanently enjoined from discriminating 
on the basis of race, color or ethnicity in the operation 
of the school system. They shall continue to take action 
necessary to disestablish all school segregation, eliminate 
the effects of the former dual system and prevent reseg­
regation.

2. The defendants are enjoined from operating schools 
or programs which are racially identifiable as a result of 
their actions. The Board is not required to maintain the 
current student assignment plan of attendance zones, pair­
ings, magnet schools or programs, satellite zones and grade- 
level structure. Before making any changes, the Board must 
consider specific data showing the effect of such changes 
on the projected racial/ethnic composition of the student 
enrollment in any school affected by the proposed change. 
The Board must act to assure that such changes will not 
serve to reestablish a dual school system.

3. The constraints in paragraph 2 are applicable to fu­
ture school construction and abandonment.

4. The duty imposed by the law and by this interim 
decree is the desegregation of schools and the maintenance 
of that condition. The defendants are directed to use their 
expertise and resources to comply with the constitutional 
requirement of equal educational opportunity for all who 
are entitled to the benefits of public education in Denver, 
Colorado.

5. The District retains the authority to initiate trans­
fers for administrative reasons, including special education, 
bilingual education and programs to enhance voluntary in­
tegration. The defendants shall maintain an established 
policy to prevent the frustration, hindrance or avoidance 
of a District student assignment plan through parent in­
itiated transfers and shall use administrative procedures to 
investigate, validate and authorize transfer requests using



E7

criteria established by the Board. If transfers are sought 
on grounds of “ hardship” , race, color or ethnicity will not 
be a valid basis upon which to demonstrate “ hardship” . 
The defendants shall keep records of all transfers, the rea­
sons therefor, the race, color or ethnicity of the student, 
and of the effects on the population of the transferee and 
transferor schools.

6. No student shall be segregated or discriminated against 
on account of race, color or ethnicity in any service, facil­
ity, activity, or program (including extracurricular activ­
ities) conducted or sponsored by the school in which he 
or she is enrolled. All school use or school-sponsored use 
of athletic fields, meeting rooms, and all other school re­
lated services, facilities and activities, and programs such 
as commencement exercises and parent-teacher meetings 
which are open to persons other than enrolled students, 
shall be open to all persons without regard to race, color 
or ethnicity. The District shall provide its resources, ser­
vices and facilities in an equitable, nondiscriminatory manner.

7. The defendants shall maintain programs and policies 
designed to identify and remedy the effects of past racial 
segregation.

8. The defendants shall provide the transportation ser­
vices necessary to satisfy the requirements of this interim 
decree notwithstanding the provisions of Article IX, Sec­
tion 8 of the Colorado Constitution.

9(A). The principals, teachers, teacher-aides and other 
staff who work directly with children at a school shall be 
so assigned that in no case will the racial or ethnic com­
position of a staff indicate that a school is intended for 
minority students or anglo students.

(B). Staff members who work directly with children, 
and professional staff who work on the administrative



E8

level will be hired, assigned, promoted, paid, demoted, dis­
missed, and otherwise treated without regard to race, color 
or ethnicity.

(C). Defendants are required to use an effective affirma­
tive action plan for the hiring of minority teachers, staff 
and administrators with the goal of attaining a proportion 
which is consistent with the available labor force; the plan 
shall contain yearly timetables and a reasonable target 
date for the attainment of the affirmative action goals.

10. The District will continue to implement the provi­
sions of the program for limited English proficiency stu­
dents heretofore approved by the Court in the Language 
Rights Consent Decree of August 17, 1984. Nothing in 
this interim decree shall modify or affect the Language 
Rights Consent Decree of August 17, 1984, and the prior 
orders entered in this case relating thereto shall remain 
in full force and effect.

11. It is further provided that this interim decree is 
binding upon the defendant Superintendent of Schools, the 
defendant School Board, its members, agents, servants, 
employees, present and future, and upon those persons 
in active concert or participation with them who receive 
actual notice of this interim decree by personal service 
or otherwise.

12. This interim decree, except as provided herein, shall 
supersede all prior injunctive orders and shall control 
these proceedings until the entry of a final permanent 
injunction.

Dated: October 6, 1987
BY THE COURT:

Richard P. Matsch, Judge