Keyes v. School District No. 1 Denver, CO. Appendix to petition for Certiorari and Opinion

    In  the

Court uf %  luttrit BUtm
October T erm, 1971 

No. 71-..............

W ilfred K eyes, et al.,

v.
Petitioners,

School District No. 1, Denver, Colorado, et al.

APPENDIX TO PETITION FOR CERTIORARI 
OPINIONS BELOW

J ack Greenberg 
J ames M. Nabeit, III 
Charles Stephen Ralston 
Norman J . Chachkin 

10 Columbus Circle 
New York, New York 10019

Gordon G. Greiner 
R obert T. Connery

500 Equitable Building 
Denver, Colorado 80202

Attorneys for Petitioners



I N D E X

PAGE

Opinion of District Court of July 31, 1969 (Granting
Preliminary Injunction) ........ ......................... .......... la

Opinion of District Court of August 14, 1969 (On re­
mand from Court, of Appeals, making Supplemental 
Findings and Conclusions and amending the Pre­
liminary Injunction to make it more specific) ..........  20a

Opinion of District Court of March 21, 1970 (Opinion 
on merits) ............................................ ....................... 44a

Opinion of District Court of May 21, 1970 (Opinion 
on relief) .....................................................................  99a

....122aOpinion of Court of Appeals of June 11, 1971 

Judgment of Court of Appeals....................... ,159a



UNITED STATES DISTRICT COURT

Opinion o f District Court o f July 31 , 1969

D. Colorado 

Civ. A. No. C-1499 
July 31, 1969

W ilfred K eyes, individually and on behalf of 
Christi K eyes, a minor, el al.,

Plaintiffs,

School District Number One, Denver, Colorado, et al.,
Defendants.

Memorandum Opinion and Order 

W illiam E. Doyle, District Judge
I. J urisdiction

This is before us on a motion for temporary injunction. 
Examination of the complaint reveals that jurisdiction is 
invoked by reason of Title 28 U.S.C. § 1343 (3) (4), which 
authorizes the Court to entertain suits which seek to redress 
injuries resulting from violations of the Constitution of 
the United States. Although the Declaratory Judgment Act 
has been invoked, this does not of itself confer any inde­
pendent jurisdiction. The Civil Rights Act is also drawn 
into play, Title 42 U.S.C. §§ 1983, 1985. It is alleged that 
the State of Colorado, acting through its agents, violated 
plaintiffs’ constitutional rights. By reason of the allega-

l a



2a

tions of the complaint and the facts which have been pre­
sented, it is determined that there is subject matter juris­
diction to hear the cause.

The plaintiffs, who are school children, allege through 
their parents that their rights have been violated and con­
tinue to be violated through acts that have been described. 
Consequently, they are aggrieved persons. There is no dis­
pute about their identity or their interest in the case, nor 
is there any question raised as to the propriety of a class 
action on behalf of all persons similarly situated. Conse­
quently, there does not appear to be any problem about 
jurisdiction, personal or subject matter, to entertain the 
cause. Both sides have conceded that it is a matter that 
needs immediate attention and that it should be disposed of 
without delay.

Opinion of District Court of July 31, 1969

II. T he I ssues

The pleadings describe alleged injuries resulting from 
the plaintiffs having been subjected to unequal treatment 
with respect to their right to an education. They seek to 
enjoin the implementation of a resolution of the School 
Board passed on June 9th of this year which would have 
rescinded previous resolutions which had made some effort 
to mitigate or reduce segregation which allegedly had ex­
isted in schools in the northeast part of Denver. The de­
fendants deny that there has been any actionable segrega­
tion. Although no answer has been filed, they maintain 
that segregation, if any, exists by reason of maintaining 
neighborhood schools and natural migration, and that no 
action on their part has brought this about or intensified it. 
Basically, this is the issue which has been tried here, and 
has been tried rather extensively.



3a

The complaint herein contains several causes of action 
and counts. At this stage of the proceedings we are con­
cerned only with the first cause of action and the counts 
which are related to it. All of these allegations pertain to 
the rescission of School Board Resolutions 1520, 1524 and 
1531, which resolutions made changes in the attendance 
areas of certain high schools, junior high schools and ele­
mentary schools in northeast Denver, and undertook to 
desegregate these schools, all of which had become or were 
becoming predominantly Negro schools. It is alleged that 
on June 9, 1969, the newly elected School Board, by motion, 
rescinded all three resolutions. The complaint alleges that 
the action of the Board was in violation of the plaintiffs’ 
Constitutional rights—the Fourteenth Amendment—and 
seeks a decree reinstating Resolutions 1520, 1524 and 1531.

The motion for preliminary injunction which is now 
before us seeks to enjoin the implementation of Board Res­
olution 1533 which would adopt and follow the policy which 
would carry out the practices which existed prior to the 
Board’s adoption of Resolutions 1520, 1524 and 1531. The 
temporary injunction seeks maintenance of the status quo 
and, specifically, an order enjoining the School Board from 
modifying the purchase order for school buses, destroying 
documents relating or pertaining to the implementation of 
Resolutions 1520, 1524 and 1531 and, thirdly, from taking 
any action or making any communications to faculty, staff, 
parents or students during the pendency of the suit which 
would make it impossible or more difficult to proceed with 
the implementation of Resolutions 1520,1524 and 1531. The 
defendants have not filed an answer. However, at the hear­
ing they denied that any of their acts were invalid and 
generally maintained that they had made good faith efforts 
to integrate the schools in question to the extent that it was

Opinion of District Court of July 31, 1969



4a

possible to do so considering the geographic circumstances. 
They further maintained that the segregation, if any, was 
merely de facto growing out of the neighborhood char­
acter of the schools, and that the acts of the School Board 
do not amount to actionable or de jure segregation.

III. T he E vidence of the Case

Attention at this hearing has focused primarily on the 
schools in northeast Denver, and particularly on the area 
which is commonly called Park Hill. The alleged segre­
gated schools, elementary and junior high schools in this 
area, have acquired their character as such during the past 
ten years. The primary reason for this has been the migra­
tion of the Negro community eastward from a confined 
community surrounding what is commonly called “Five 
Points.” Before 1950 the Negroes all lived in a community 
bounded roughly by 20th Avenue on the south, 20th Street 
on the west, York Street on the east and 38th Avenue on 
the north. The schools in this area were, and are now, 
largely Negro schools. However, we are not presently con­
cerned with the validity of this condition. During this 
period the Negro population was relatively small, and this 
condition had developed over a long period of time. How­
ever, by 1960 and, indeed, at the present time this popula­
tion is sizable. As the population has expanded the move 
has been to the east, first to Colorado Boulevard, a natural 
dividing line, and later beyond Colorado Boulevard, but 
within a narrow corridor-—more or less fixed north-south 
boundaries. The migration caused these areas to become 
substantially Negro and segregated.

The trend of the population was apparent long before the 
migration of the Negro population eastward to Colorado 
Boulevard was completed. Notwithstanding this fact, the

Opinion of District Court of July 31, 1969



5a

Barrett Elementary School was built in the late 1950’s for 
the purpose of serving a residential area west of the school, 
which area was destined in a short time to become popu­
lated by Negro families. When this school was completed 
and opened, its population was predominantly Negro. In 
a few years it became overwhelmingly Negro in its com­
position.

In the early 1960’s Colorado Boulevard was somewhat of 
a dividing line and the area east of Colorado was for the 
most part Anglo. Thus Stedman School, which was a few 
blocks east of Colorado Boulevard, was almost entirely 
Anglo, while Barrett was predominantly Negro. The migra­
tion soon continued across Colorado Boulevard and within 
a very short time not only was the Stedman School pre­
dominantly Negro, the other elementary schools in that 
area, including Hallett at 2950 Jasmine Street, Smith at 
3590 Jasmine Street and Phillips at 6550 East 21st Avenue 
(to a lesser degree) were also predominantly Negro. The 
single junior high school, Smiley, at 2540 Holly Street, also 
became predominantly Negro. Since these students attend 
East High School, this development threatened to result in 
East becoming a Negro school as well.

It is noteworthy that notwithstanding that Barrett and 
Stedman Schools were close to one another, no effort was 
made by the School Board to incorporate any part of the 
Stedman district into Barrett. The latter had been con­
structed as a small school tailored to accommodate the 
segregated population west of Colorado Boulevard only. 
None of Stedman’s overcrowded white population were 
diverted to Barrett, and, of course, none of the Barrett 
students were diverted to the white Stedman.

It is also noteworthy that Negro children who had, prior 
to the construction of Barrett, attended Park Hill School

Opinion of District Court of July 31, 1969



6a

which had been substantially integrated, were, after the 
opening of Barrett, required to attend the latter school 
thus further assuring that Barrett would be black and Park 
Hill predominantly white.

Notwithstanding the Barrett experience, a recommenda­
tion was made in 1962 to construct a junior high school at 
32nd and Colorado Boulevard near the Barrett School. 
This project was rejected after much debate and following 
public protest that it would be a racially segregated junior 
high school.

After this junior high school experience, a Special Study 
Committee on Equality of Educational Opportunity in the 
Denver Public Schools was created. Its mission was to 
“study and report on the present status of educational op­
portunity in the Denver Public Schools, with attention to 
racial and ethnic factors in the areas of curriculum, instruc­
tion and guidance; pupils and personnel; buildings, equip­
ment, libraries and supplies, administration and organiza­
tion; school-community relations, and to recommend im­
provements in any or all of such specific areas.” The report 
of the Committee criticized the Board’s establishing of 
school boundaries so as to perpetuate existing de facto 
segregation “and its resultant inequality in the educational 
opportunity offered.” It recommended that the Board 
policy consider racial, ethnic and socioeconomic factors in 
establishing boundaries and locating new schools so as to 
minimize the effects of de facto segregation. It also recom­
mended that boundaries be set so that the neighborhood 
established represent a heterogeneous school community.1 1

1 In consideration of school-community relations, the Report 
stated:

In its study of the Denver community, the Committee finds 
that de facto segregation exists in Denver, especially in re­

Opinion of District Court of July 31, 1969



7a

Following the finding of the Study Committee Report, 
the Board adopted Policy 5100 which called for changes or 
adaptations which would result in a more diverse or hetero­
geneous racial and ethnic school population. However, dur­
ing the years following the adoption of Policy 5100, al­
though there was debate, there was no effective effort in the 
way of implementation. Finally, another Study Committee 
was appointed for the purpose of examining existing con­
ditions and recommending specific procedures and guide­
lines to be taken. At this time there was a proposal to build 
an addition to the Hallett School and, indeed, it was built 
over the protest that it would result in intensified segrega­
tion. The final report of the second Study Committee was 
filed on February 23, 1967. The report of the Committee 
also noticed the intensified segregation in the northeast 
schools and recommended that there be no more schools 
constructed in northeast Denver. Finally, on May 16, 1968, 
the Board adopted the so-called Noel Resolution. This noted 
that the continuance of neighborhood schools had resulted 
in the concentration of minority and ethnic groups and

gard to Negro citizens. Even though the Denver Public 
Schools have not created this pattern of residential segrega­
tion, the concentration of certain racial and ethnic groups in 
certain parts of the city does impose on the schools the same 
community pattern of de facto segregation.

The Committee agrees with the statement of the IT.S. Su­
preme Court in 1954 in Brown v. Board of Education that 
segregated education is inherently unequal education. The 
Committee further believes that this community pattern of 
racial and ethnic concentration which produces racially and 
ethnically concentrated schools adversely affects equal educa­
tional opportunity. It further strongly believes that both 
school and community have a responsibility to minimize the 
effects of segregation if the principles of the Declaration of 
Independence and the Constitution are to be a reality growing 
out of the daily living experience of all children in the Denver 
community.

Opinion of District Court of July 31, 1969



8a

called for the establishment of an integrated school popula­
tion so as to achieve equality of educational opportunity.

On or about January 30, 1969, following the presentation 
of a plan of integration by the superintendent of schools, 
the Board adopted Resolution 1520 which made changes in 
attendance areas of certain secondary schools in the school 
district, and on March 20, 1969, Resolution 1524, also hav­
ing to do with secondary schools and junior high schools, 
was adopted. Resolution 1531, on the other hand, sought 
to change attendance areas of the elementary schools. In 
essence, each of these resolutions soug'ht to reverse the 
segregation trend in some of the segregated schools by 
boundary changes which would have resulted, had they 
become effective, in segregated schools becoming predomi­
nantly white. It sought to spread the Negro populations 
of these schools to numerous other schools, thereby achiev­
ing what has been described as racial balance in all of 
them so that their predominantly Negro populations would 
become roughly 20 percent and white students from other 
areas would produce an Anglo population in each school 
of about 80 percent. At least preliminary efforts had been 
made by the superintendent and his staff to implement these 
resolutions. However, on June 9, 1969, following a School 
Board election and a change in the composition of the Board, 
the resolutions were rescinded following what was regarded 
as a voter mandate. Two new Board members were elected 
and two who had supported the integration policies were 
defeated. The rescission was by specific motions, and there 
followed a new Resolution, 1533, which undertook to restore 
the old order.

IY. Additional F indings

The important facts adduced at the hearing deserve spe­
cial mention as circumstances which serve to show clear

Opinion of District Court of July 31, 1969



Opinion of District Court of July 31, 1969

patterns of segregation reinforced by official action, and 
which also show knowing and purposeful conduct.

1. All of the actions of the School Board here under con­
sideration occurred during the last ten years. Thus, they 
took place long after the decision of the Supreme Court in 
Brown v. Board of Education of Topeka, 347 U.S. 483, 74 
S.Ct. 686, 98 L.Ed. 873 (1954).

2. The School Board Study Committee of 1964 and 1968 
warned the members of the Board concerning the segrega­
tion trends and strongly recommended measures which 
would avoid or remedy these conditions. The recommenda­
tions contained in the 1964 report2 3 were, for the most part, 
ignored, and this led to the appointment of a second im­
plementation Committee which once again was positive and 
specific in its recommendations.

3. During the entire decade there was regular debate and 
although resolutions were adopted, no effective action oc­
curred, and many of the actions which were taken had the 
effect of intensifying rather than alleviating the segrega­
tion problem.

4. Assignment of Teachers. Schools with predominantly 
minority student populations were shown to be staffed by 
a greater proportion of teachers on probationary status, 
teachers with less than ten years experience and minority 
group teachers than were schools with a predominantly 
Anglo student population.8

The Board has been reluctant to place Negro and Hispano 
teachers in white schools because of concern over a possible

2 Plaintiffs’ Exhibit 20.
3 Plaintiffs’ Exhibits 92, 93, 94, 96, 8-G, 8-F, 9-G, 9-H.



10a

lack of acceptance by the white community and because of 
a fear of lack of support by some faculties and principals.4 
The Special Study Committee on Equality of Educational 
Opportunity in the Denver Public Schools (March 1, 1964) 
recommended that minority teachers be assigned through­
out the system. This recommendation was never adopted 
by the Board.

By established Board policy (Policy No. 1617A) seniority 
of service is given consideration in making transfers, and 
teachers on probationary status are not to be transferred 
except in unusual situations. Thus, teachers on probation 
or with less seniority became entrenched in the minority 
schools where they currently serve.

This tendency to concentrate minority teachers in minor­
ity schools has helped to seal off these schools as permanent 
segregated schools.

5. Establishment of Barrett School. Plaintiffs’ Exhibits 
40 and 41 show that Barrett was opened in a segregated area 
in 1960; that it was located with conscious knowledge that 
it would be a segregated school; that it has remained segre­
gated to the present date; and that the school would have 
been desegregated under Resolution 1531. At the time 
Barrett was built Stedman School, in a predominantly white 
area, and located a few blocks east of Barrett, was operating 
at approximately 20 percent over capacity. Yet Barrett 
was built as a relatively small school and was not utilized 
to relieve the conditions at Stedman.

6. Boundary Changes. In 1962, Superintendent Ober- 
holtzer recommended certain boundary changes to the 
Board. The Board refused to adopt a change which would

Opinion of District Court of July 31, 1969

4 Plain tills’ Exhibit 20, Pg. D-13.



11a

have affected the overcrowded conditions at Stedman. The 
failure to make this proposed change tended to “aggravate 
and intensify the containment of the Negro population in 
Stedman at that time.” 5 Those boundary changes which 
were made pertained to areas with Negro populations of 
less than 3 percent. Other boundary changes not only 
failed to alleviate Negro concentration; they added to it. 
In some instances the changes resulted in transfer of white 
students to white schools.

7. Concentration in Existing Schools. In June 1965, the 
Board considered the addition of eight classrooms at Hallett 
School. Hallett was at the time overcrowded and had a 
predominantly Negro student population. Objection was 
made to the additions on the grounds that they would in­
crease segregation at Hallett.6 The Board nevertheless pro­
ceeded with the additional classrooms. The additions were 
built despite Paragraph lb (6) of Board Policy No. 1222C 
and Paragraph 4 of Policy No. 5100, which provided that 
ethnic and racial characteristics of a school population 
should be considered in determining boundaries and that 
steps should be taken to achieve more heterogeneous school 
populations.

8. Mobile Classrooms. The building of 28 mobile units 
in the Park Hill area in 1964 (at the time there were only 
29 such units in all of Denver) resulted in a further con­
centration of Negro enrollment in Park Hill schools. The 
retention of these units on a more or less permanent basis 
tended to continue this concentration and segregation.

Opinion of District Court of July 31, 1969

5 Transcript, Pp. 180-81.
6 Transcript, Pg. 37.



12a

9. Effect of Resolutions 1520, 1524 and 1531. Had the 
rescinded resolutions been implemented, Dr. Bardwell esti­
mated (based on 1968 enrollment figures) that the “segrega­
tion index” in senior high schools would have decreased 
from 50 to 28 ; that the index in junior high schools would 
have decreased from 65 to 35; and that the decrease in the 
index for elementary schools would have been from 60 to 
43 which, he testified, would approximately result in de­
segregation of elementary schools.

10. The above noted Board actions must be considered 
in the light of the trend toward increased segregation in 
northeast Denver schools (for example, between 1960 and 
1966 Stedman increased from 4 percent Negro to 89 per­
cent Negro; in that same period Hallett increased from 1 
percent Negro to 75 percent Negro). 11

11. The climactic and culminative act of the Board was 
the June 9 rescission of Resolutions 1520, 1524 and 1531. 
Four members of the Board voted to rescind the resolutions 
and adopted Resolution 1533, which embraced policies in 
derogation of the previous policies as expressed in the men­
tioned resolutions. The majority of the Board (Board 
members Voorhees, Noel and Amesse voted against it) 
acted officially to reject the integration effort and to restore 
and perpetuate segregation in the area. Although this was 
carried out in response to what was called a voter mandate, 
there can be no gainsaying the purpose and effect of the 
action as one designed to segregate.

We do not find that the purpose here included malicious 
or odious intent. At the same time, it was action which 
was taken with knowledge of the consequences, and the con­
sequences were not merely possible, they were substantially

Opinion of District Court of July 31, 1969



13 a

certain. Under such conditions the action is unquestionably 
wilful.7

V. T he Applicable Law

The foundation stone in any case involving discrimina­
tion in public schools is the Constitution of the United 
States and, in particular, the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution. That Clause, 
in guaranteeing to every citizen the equal protection of the 
laws, forbids state action which results in unreasonable 
classifications and deprivations. It prohibits arbitrary 
classifications which bear no rational relation to any valid 
governmental purpose.

The history of modern case law dealing with the invalid 
discrimination resulting from school segregation dates 
from 1954, the year in which the Supreme Court handed 
down Brown v. Board of Ed., 347 U.S. 483, 74 S.Ct. 686. 
The Supreme Court there held that segregation in public 
schools violated the Equal Protection Clause. However, 
the case certainly went much further than this. The Court 
plainly stated that segregated schools are incapable of pro­
viding quality education and also said that the effect of 
segregation in the school system was to place an indelible 
stamp of inferiority on those Negro children who were 
compelled to attend “Negro” schools. Thus, the clear im­
port of the Brown decision is that neither a state nor its 
agencies may establish, maintain or lend support to a 
system of segregated public education. Furthermore, if the 
state or any of its agencies prior to or after Brown take any 
action which creates or furthers segregation, a positive 
duty arises to remove the effects of such de jure segregation.

Opinion of District Court of July 31, 1969

7 Restatement of Torts, § 500, comments f and g at 1296 (1934).



14a

Admittedly, the facts of the case at bar are different from 
Brown, but the legal implications of the Brown case are 
fully applicable here. These legal implications have been 
considered in two opinions of our Court of Appeals. The 
first of these cases, Downs v. Board of Ed., 336 F.2d 988 
(10th Cir., 1964), dealt with the Kansas City school system. 
Until 1951 this school system had been segregated by law 
and, at the time that Brown was decided, the schools re­
mained substantially segregated. Thereafter, the school 
board took affirmative steps to alleviate the situation 
created by the prior policy of segregated schools. The trial 
court found that the board had acted in good faith to re­
move segregation in the school system and that the mini­
mum requirements of Brown had been met. The board had 
also undertaken to change certain school district boundaries 
and these changes had the effect of aggravating segregation 
in at least one of the city’s junior high schools. The trial 
court held that the board’s action did not violate the Four­
teenth Amendment since the boundary change was made 
in good faith and not for the purpose of promoting or 
maintaining segregation.

In affirming the district court, the Court of Appeals laid 
down guiding principles to be applied in future cases. It 
distinguished two factual situations: (1) Where the school 
board takes affirmative action which has the effect of pro­
moting or maintaining segregation; and (2) Where because 
of population shifts and housing patterns certain schools 
have become segregated—so-called de facto segregation. 
As to the former, the Court said that it must appear that 
the board’s action not only resulted in aggravating segrega­
tion, hut also that the board acted purposefully with this 
object in mind. As to the latter, the Court said that the 
better rule was that there is no affirmative duty to integrate

Opinion of District Court of July 31, 1969



15a

races in the public schools.8 The trial court in Downs had 
found that the school board in that case had made a good 
faith attempt to conform to the law. The Circuit Court 
was reluctant to overturn these findings since the district 
court had heard the evidence.

In Board of Ed. of Oklahoma City Public Schools, etc. v. 
Dowell, 375 F.2d 158 (10th Cir. 1967), the Tenth Circuit 
Court of Appeals affirmed the decision of the District Court 
of Oklahoma, which Court had ordered the school board of 
Oklahoma City to undertake a plan for desegregation, which 
plan had been formulated by experts appointed by the 
Court. Thus, in reality it was the Court’s plan. Prior to 
Brown the Oklahoma City school system was segregated 
pursuant to constitutional and statutory mandate. Both the

8 Whether the Court would now give broad effect to this is, of 
course, irrelevant in the present ease, but in view of later develop­
ments in the law, the question arises as to whether it would say 
the same thing today since the cases which it cited in support of 
this proposition have been largely overruled. Thus, in United 
States v. Jefferson County Bd. of Ed., 380 F.2d 385 (5th Cir. 1967) 
(en banc), the Fifth Circuit Court of Appeals overruled four of 
the opinions cited in support of the statement in Downs that “the 
better rule is that although the Fourteenth Amendment prohibits 
segregation, it does not command integration of the races in the 
public schools * # (Evers v. Jackson Municipal Separate School 
Dist., 328 F.2d 408 (5th Cir. 1964) ; Stell v. Savannah-Chatham 
County Bd. of Ed., 333 F.2d 55 (5th Cir. 1964); Boson v. Rippy, 
285 F.2d 43 (5th Cir. 1960) ; and Avery v. Wichita Falls Inde­
pendent School Dist., 241 F.2d 230 (5th Cir. 1956)). The Jefferson 
County opinion states:

The Court holds that boards and officials administering pub­
lic schools in this circuit have the affirmative duty under the 
Fourteenth Amendment to bring about an integrated, unitary 
school system in which there are no Negro schools and no white 
schools—just schools. Expressions in our earlier opinions dis­
tinguishing between integration and desegregation must yield 
to this affirmative duty we now recognize. (Footnotes omitted).

380 F.2d at 389.

Opinion of District Court of July 31, 1969



16a

trial court and the Tenth Circuit read the Brown decision 
as requiring affirmative action to remove segregation which 
had been purposefully caused by prior actions of the school 
board. The opinion by Judge Hill saw nothing new in a 
court of equity taking positive steps to integrate the 
schools.

It is sufficient to say that we are not here faced with the 
kind of simple or innocent de facto segregation which was 
found to exist in Downs. We have seen that during the ten 
year period preceding the passage of Resolutions 1520, 1524 
and 1531, the Denver School Board has carried out a 
segregation policy. To maintain, encourage and continue 
segregation in the public schools in the face of the clear 
mandates of Brown v. Board of Ed. cannot be considered 
innocent. The many cases decided subsequent to Brown, 
including our own Circuit’s Board of Ed. v. Dowell, impose 
an affirmative duty on the School Board to take positive 
steps to remove that segregation which has developed as a 
result of its prior affirmative acts. In response to this duty, 
the Denver School Board passed Resolutions 1520,1524 and 
1531. In light of Brown and Dowell, the effort of the Board 
to renounce this constitutional duty by rescission must be 
rejected as arbitrary state legislative action.

The defendants have alluded to the fact that Resolution 
1533 represents the will of the people, and that any action 
taken by this Court which would adversely affect the Reso­
lution would frustrate that will. But as we have seen Brown 
v. Board of Ed. and all of the subsequent cases hold that 
equal protection of the laws is synonymous with the right 
to equal educational opportunities and that segregated 
schools can never provide that equality. The constitutional 
protections afforded by the Bill of Rights and the Four­
teenth Amendment were designed to protect fundamental

Opinion of District Court of July 31, 1969



17a

rights, not only of the majority but of minorities as well, 
even against the will of the majority. The effort to accom­
modate community sentiment or the wishes of a majority of 
voters, although usually valid and desirable, cannot justify 
abandonment of our Constitution. Eeitman v. Mulkey, 387 
U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) ;9 Lucas v. 
Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 
1459, 12 L.Ed.2d 632 (1964).

It is to be emphasized finally that this present case, except 
for the presence of clear evidence of purpose manifested 
by the precipitate rescission, is by no means novel. The 
right to equality in education has, since Brown, become 
recognized as a sensitive constitutional right. Courts 
throughout the country have taken positive, affirmative 
steps in order to uphold these rights. In our own Circuit, 
both the Downs and Dowell opinions have clearly identified 
and explained the governing legal principles. In other 
jurisdictions, United States Courts have granted broad 
affirmative relief in such situations, including orders re­
quiring the adoption of detailed plans for segregation.10

9 In this case, the Supreme Court struck down a California con­
stitutional amendment on the ground that it was not merely a 
repeal of a positive action encouraging integration, but that the 
rejection, in effect, authorized discrimination by turning back to 
the conditions which existed prior to its adoption. It thus en­
couraged and in a significant way involved the state in racial dis­
crimination contrary to the Fourteenth Amendment. Hence, it 
was not an exhibition of complete neutrality.

10 See, e.g., United States v. School Dist. 151, 286 F.Supp. 786 
(N.D.I11.), aff’d., 404 F.2d 1125 (7th Cir. 1968); Coppedge v. 
Franklin County Bd. of Ed., 273 F.Supp. 289 (EJD.N.Car.), aff’d., 
394 F.2d 410 (4th Cir. 1968) ; Hobson v. Hansen, 269 F.Supp. 401 
(D.D.C. 1967), aff’d sub nom., Smuck v. Hobson, 408 F.2d 175 
(D.C.Cir. 1969) ; Blocker v. Board of Bd., 226 F.Supp. 208 (E.D. 
N.Y. 1964) ; Taylor v. Board of Bd., 191 F.Supp. 181 (S.D.N.Y.), 
aff’d., 294 F.2d 36 (2d Cir. 1961).

Opinion of District Court of July 31, 1969



18a

In the present ease, this Court has held only that the Denver 
School Board may not constitutionally take action which 
perpetuates segregation, and so it sets no new precedent.

In determining that the plaintiffs are entitled to the 
preliminary relief sought, we are not to be understood as 
holding that Resolutions 1520, 1524 and 1531 are exclusive. 
It is true that the case is extraordinary in that there are 
only two plans presented, one calling for integration and 
one for segregation. The status quo has the effect of restor­
ing the integration plan. However, the Board is by no 
means precluded from adopting some other plan embodying 
the underlying principles of Resolutions 1520, 1524 and 
1531.

Opinion of District Court of July 31, 1969

VI. Conclusion

Under the Fourteenth Amendment the plaintiffs, as citi­
zens of the United States, have the right to be protected 
from official action of state officers which deprives them of 
equal protection of the laws by segregating them because 
of their race. The denial of an equal right to education is 
a deprivation which infringes this constitutional guarantee. 
The precipitate and unstudied action of four of the mem­
bers of the Board rescinding and nullifying the school 
integration plan, which plan had been adopted after almost 
ten years of debate and study, and the adoption in its place 
of a substitute plan which would have had the effect of

In our own Circuit, sweeping plans for desegregation were 
formulated by the United States District Court for the Western 
District of Oklahoma on its own initiative after the school board 
tailed to act, and these plans were approved by the Court of Ap­
peals. Dowell v. School Board of Oklahoma City Public Schools 
244 F.Supp. 971 (W.D.Okl.), aff’d., 375 F.2d 158 (10th Cir 1967)

In Hobson, Circuit Judge Wright, sitting by assignment in Dis- 
trict Court, adopted an intricate and detailed integration plan.



19a

Opinion of District Court of July 31, 1969

perpetuating school segregation, had not only a chilling 
effect upon their rights; it had a freezing effect. Under the 
law of the case, we have no alternative. The action taken 
must be ruled unconstitutional, and the proposed action 
must be enjoined.

The case is a proper one for injunctive relief because (1) 
Plaintiffs have no adequate remedy at law; (2) Plaintiffs 
would suffer irreparable injury if relief were denied; and 
(3) Plaintiffs will probably succeed at trial, at least on the 
cause of action under consideration.

The motion for preliminary injunction is granted.



20a

Opinion o f District Court o f August 14, 1969

UNITED STATES DISTRICT COURT 
D. Colorado 

Civ. A. No. C-1499
Aug. 14, 1969.

W ilfred K eyes, individually and on behalf of 
Christi K eyes, a minor, et al.,

Plaintiffs,
—v.—

School District Number One, Denver, Colorado, et al.,

Defendants.

Supplemental F indings, Conclusions and Temporary 
I njunction

W illiam E. Doyle, District Judge.

This case is before the Court following remand issued 
by the United States Court of Appeals for the Tenth Circuit 
on August 7, 1969. In its opinion the Court of Appeals 
(1) questioned the sufficiency in terms of specificity of our 
injunctive order, and (2) directed that this Court consider 
Title IV, § 407(a) of the 1964 Civil Rights Act, 42 U.S.C. 
§ 2000c-6(a).

A hearing was held on August 7, 1969. The Court, having 
heard the arguments, does hereby issue a more specific 
injunctive order. The question of the applicability of the 
above mentioned statute will be considered in a supple­
mental opinion. Also, the following supplemental findings



21a

are added to the oral findings of fact given from the bench 
on July 23, 1969, and the formal findings of fact contained 
in this Court’s opinion issued on the 31st day of July, 1969. 
The findings hereinafter set forth are directed to the 
schools which received particular attention at the trial. 
These findings undertake to describe the special circum­
stances surrounding these particular schools, and the con­
clusions which are to be drawn from these findings.

F indings or F act

Barrett Elementary School (Located at East 29th Avenue 
and Jackson Street.)

1. Barrett Elementary School was opened in 1960. At 
that time its student body was 89.6 percent Negro. 
Presently the racial composition of Barrett is virtually 
100 percent minority students (93% Negro, 7% Hispano). 
Thus, from the time of its establishment until the present 
Barrett has always been a segregated school.

2. The average percentage of Negro teachers in elemen­
tary schools in School District No. 1 as of September 1968 
was 8.5 percent. In Barrett school the percentage of Negro 
teachers is 52.6 percent. This concentration of Negro teach­
ers in a “Negro” school has further contributed to the 
categorization of Barrett as a segregated school.

3. Between 1950 and 1960 the Negro population, which 
previously had been concentrated in an area known as “Five 
Points” began to expand to the east. By 1960 it had moved 
up to Colorado Boulevard, a natural dividing line. This 
trend of population was apparent long before the migra­

Opinion of District Court of August 14, 1969



22a

tion of the Negro population eastward to Colorado Boule­
vard was completed. With full knowledge of this popula­
tion trend and the fact that Barrett would be a segregated 
school from the time of its establishment, the Board pro­
ceeded with and carried into effect the plans for the build­
ing of that school.

4. At the time that Barrett was built, the School Board 
created the eastern boundary of the Barrett district along 
Colorado Boulevard. Thus, the eastern boundary of Bar­
rett school district was made coterminous with the eastern 
boundary of Negro population movement at that time. This 
insured the character of Barrett as a segregated school.

5. When Barrett was built, Stedman Elementary School, 
in a predominantly white area east of Colorado Boulevard 
a few blocks from the Barrett site, was operating at ap- 
proximately 20 percent over capacity. Had the eastern 
boundary of the Barrett district been set to the east of 
Colorado Boulevard, it would have resulted in some integra­
tion of Barrett, while alleviating somewhat the overcrowded 
conditions at Stedman. By establishing Colorado Boule­
vard as the eastern boundary of the Barrett district, the 
Board declined to utilize Barrett to achieve these salutary 
effects. Furthermore, Barrett was built as a relatively 
small school (capacity 450) which further prevented its use 
to relieve overcrowded conditions in the neighboring 
“white” Stedman. Thus, Barrett was built and opened as 
a segregated school.

6. In light of the facts as they existed in 1960, there can 
be no doubt that the positive acts of the Board in establish­

Opinion of District Court of August 14, 1969



23a

ing Barrett and defining its boundaries were the proximate
cause of the segregated condition which has existed in that
school since its creation, which condition exists at present.

#

7. The action by the Board with respect to the creation 
of Barrett school was taken with knowledge of the con­
sequences, and these consequences were not merely possible, 
they were substantially certain. Under such conditions 
we find that the Board acted purposefully to create and 
maintain segregation at Barrett.

8. The Board maintained the segregated condition which 
it had created at Barrett by failing to take any action 
to correct it between 1960 and 1969. On April 24, 1969, the 
Board passed Resolution 1531 (operative September 1969) 
which would have desegregated Barrett by altering school 
district boundaries. Prior to the passage of Resolution 
1531, Barrett was 93 percent Negro and 7 percent Hispano. 
The racial composition in that school subsequent to imple­
mentation of 1531 would have been 73 percent Anglo, 24 
percent Negro, 3 percent Hispano.

9. On June 9, 1969, the Board, by a 4 to 3 vote, rescinded 
Resolution 1531 and thereby reaffirmed its prior policy of 
maintaining and perpetuating segregation at Barrett. Al­
though this was carried out in response to what was called 
a voter mandate in a school board election, there can be 
no doubt that the purpose and effect of the action was 
segregation.

Stedman Elementary School (This school is located at East 
29th Avenue and Dexter Street, approximately 8 blocks east 
of Barrett Elementary School.)

Opinion of District Court of August 14, 1969



2,4a

1. Steelman Elementary School was in 1960 a predom­
inantly “white” school, the student body being only 4 per­
cent Negro. However, as a result of Negro population 
trends and rigid adherence to school boundaries by the 
Board, by 1962 Stedman was 50-65 percent Negro.

2. In 1962, and for several years prior thereto, Stedman 
had been overcrowded. Although Stedman could not be 
considered a segregated school at that time, it was clear 
by virtue of area population movement that it would become 
segregated in the near future if immediate steps were not 
taken to alleviate the overcrowding and stabilize the racial 
composition. Seven boundary changes were proposed in 
1962, three of which would have relieved overcrowding at 
Stedman by placing the overflow in Smith, Hallett, and 
Park Hill, each of which was predominantly Anglo at that 
time. The Board rejected the three Stedman proposals, 
adopting the other four which pertained to areas with 
Negro populations of less than three percent. By refusing 
to pass the proposed boundary changes for Stedman, over­
crowding was perpetuated and Negro students at that 
school were prevented from attending nearby “Anglo” 
schools.

3. By 1963 Stedman was only 18.6 percent Anglo and was 
still overcrowded. In 1964, the Board adopted several 
boundary changes, two of which had the immediate effect 
of aggravating the segregated situation at Stedman by 
transferring predominantly Anglo portions of the Stedman 
district to other “white” schools in the area. First, a pre­
dominantly “white” portion of the Stedman zone was 
detached to Hallett. Second, the Park Hill-Stedman op­
tional zone was transferred to Park Hill. This area was

Opinion of District Court of August 14, 1969



25a

approximately 96 percent Anglo, and represented that part 
of the Stedman district with the lowest Negro population. 
These changes did not significantly reduce overcrowding 
at Stedman. Rather, they tended to further segregate 
Stedman by removing the option open to many Anglo 
students to attend Stedman and preventing Negro students 
at that school from attending the predominantly Anglo 
schools in Park Hill.

4. Between May 1964 and May 1965, four mobile units 
were placed at Stedman to relieve the overcrowded condi­
tions. This, like the previous actions of the Board with 
respect to school boundaries in the Stedman district, had 
the effect of preserving the Anglo character of certain Park 
Hill schools and the segregated status of Stedman.

5. As of 1968, Stedman was 94.6 percent Negro and 3.9 
percent Anglo. On April 24, 1969, the School Board passed 
Resolution 1531 which was designed to alleviate the contain­
ment of Negro students in Stedman which had resulted 
from the Board’s conscious efforts to preserve the Anglo 
character of other Park Hill schools. While 1531 would 
not have substantially reduced the percentage of Negro 
students at Stedman, it did provide that an additional 120 
Negro children were to be transported from Stedman to 
predominantly Anglo schools (prior to this time 286 Sted­
man students were being bussed to Force, Schenck, and 
Dension schools). This would have provided an additional 
outlet for Negro children at Stedman, enabling them to 
attend a racially integrated school, and at the same time 
would have removed the need for the four mobile units. 
This was designed to relieve and mitigate the intense 
segregation condition at Stedman as well as to relieve over­
crowding.

Opinion of District Court of August 14, 1969



26a

6. On June 9, 1969, the School Board repealed Resolu­
tion 1531. The natural and probable consequence of the 
Board’s action was to continue the containment of Negro 
students at Stedman and to reassign Negro children who 
would have attended an integrated school under Resolu­
tion 1531 to the segregated Stedman.

7. The actions of the Board with respect to boundary 
changes, installation of mobile units and repeal of Resolu­
tion 1531 shows a continuous affirmative policy designed 
to isolate Negro children at Stedman and to thereby pre­
serve the “white” character of other Park Hill schools.

Park Hill and Philips Elementary Schools (Park Hill is 
located at 5050 East 19th Avenue, which is approximately 
8 blocks south and 6 blocks east of Barrett. Philips is lo­
cated at 6o50 East 21st Avenue, which is 7 blocks south 
and 25 blocks east of Barrett.)

1. In 1960 both Park Hill and Philips Elementary 
Schools were overwhelmingly Anglo in racial composition. 
Despite continued Negro population movement into these 
school districts, Park Hill and Philips presently continue 
to have a majority of Anglos in the student body. This 
characteristic of both schools is due at least in part to 
the efforts of the Board to prevent the use of Park Hill 
and especially Philips to relieve the overcrowding at Sted­
man.

2. By 1968 the racial composition of Park Hill was 71.0 
percent Anglo. 23.2 percent Negro and 3.9 percent Hispano. 
The racial composition of Philips was 55.3 percent Anglo, 
36.6 percent Negro and 5.2 percent Hispano. The prob-

Opinion of District Court of August 14, 1969



Opinion of District Court of August 14, 1969

able result of maintaining rigid school boundaries in these 
districts combined with the present trend of Negro popula­
tion movement would be the transition of Philips and Park 
Hill into substantially segregated schools.

3. On April 24, 1969, the Board passed Resolution 1531 
which would have stabilized the racial composition of these 
two schools (Park Hill would have been stabilized at 79 
percent Anglo, 13 percent Negro, 8 j>ercent Hispano; 
Philips would have been stabilized at 70 percent Anglo, 
22 percent Negro, 8 percent Hispano), by a system of 
transporting some 70 students at Park Hill to Steele and 
Steck Elementary Schools and 80 students from Philips 
to Ashley and Palmer Elementary Schools. Also, 80 stu­
dents would be transported to Philips from Palmer and 
Montclair Elementary Schools. Resolution 1531 recognized 
the interrelationship between Philips and Park Hill schools 
and Stedman, Barrett and Hallett. Thus, even though 
Philips and Park Hill were not segregated as of 1969, the 
Board felt that effective desegregation could take place at 
Barrett, Stedman and Hallett only if other Park Hill area 
schools were included in a total plan.

4. The School Board repealed Resolution 1531 on June 
9, 1969. The effect of this action was to restore the origi­
nal boundaries in the Park Hill and Philips districts, the 
probable result of which would be a gradual increase of 
Negro students into Park Hill and Philips schools ul­
timately approaching a segregated situation. Furthermore, 
by repeal of 1531 Park Hill and Philips would be reestab­
lished as buffers against the influx of Negro children into 
other Anglo schools in the Park Hill area, Stedman, Bar­
rett and Hallett would be returned to their status as over­



28a

crowded, segregated schools with no effective outlet pro­
vided into predominantly Anglo schools such as Ashley 
and Palmer.

5. In light of the natural and probable segregative con­
sequences of removing the stabilizing effect of Resolution 
1531 on Park Hill and Philips and reestablishing the origi­
nal district boundaries, the Board must be regarded as 
having acted with a purpose of approving those conse­
quences.

6. These boundary changes for Park Hill and Philips 
are necessary to the success of the entire plan called for in 
Resolution 1531.

Hallett Elementary School (Hallett is located at 2950 
Jasmine Street, 20 blocks east of Barrett.)

1. The Negro enrollment at Hallett Elementary School 
has increased from approximately one percent in 1960 to 
90 percent in 1968.

2. In 1962 several boundary changes in the Park Hill 
elementary school districts were proposed and all but three 
were adopted by the Board. One of the three boundary 
proposals considered but not adopted would have detached 
part of the Stedman district to Hallett. At that time Sted- 
man was 50-65 percent Negro and was overcrowded, 
whereas Hallett was operating under capacity and was ap­
proximately 85-95 percent Anglo. The adoption of this 
boundary change would have relieved some overcrowding 
at Stedman while increasing Negro enrollment at Hallett. 
By refusing to adopt the change, Negro students were con­
fined in an overcrowded, segregated school and were de­
nied the opportunity of attending an integrated school.

Opinion of District Court of August 14, 1969



29a

3. One of the 1962 boundary changes which was adopted 
assigned the Hallett-Philips optional zone to Philips. This 
reassigned zone was predominantly Anglo and Philips was 
at this time virtually 100 percent Anglo. There was no 
problem of overcrowding at either Hallett or Philips. All 
that was accomplished was the moving of Anglo students 
from a school district which would gradually become pre­
dominantly Negro to one which has remained predom­
inantly Anglo.

4. By 1964 Hallett was 68.5 percent Anglo. A boundary 
change in that year detached a predominantly Anglo area 
from the Stedman district to Hallett, and detached an 80 
percent Anglo area from Hallett to Philips. This latter 
area constituted the section of highest Anglo concentra­
tion in the Hallett district. After the 1964 boundary 
changes, Hallett was only 41.5 percent Anglo. This de­
crease in Anglo enrollment was due in part to the transfer 
of the predominantly “white” portion of Hallett’s at­
tendance area to Philips.

5. In 1965 four mobile units were constructed at Hallett. 
Shortly thereafter the Board also approved the construc­
tion of additional classrooms. At this time Hallett was 
approximately 75 percent Negro. The effect of the mobile 
units and additional classrooms was to solidify segregation 
at Hallett increasing its capacity to absorb the additional 
influx of Negro population into the area.

6. Resolution 1531, adopted by the Board on April 24, 
1969, provided that the Superintendent develop and insti­
tute plans to make Hallett a demonstration integrated 
school by use of voluntary transfer of pupils. The pro­

Opinion of District Court of August 14, 1969



30a

posed plan would have transferred 500 Anglo students to 
Hallett while transporting 500 Hallett pupils to predom­
inantly Anglo schools. This would have decreased the 
Negro concentration at Hallett from approximately 90 
percent to about 40 percent.

7. Resolution 1533, passed by the Board after the re­
scission of Resolution 1531, also provides for a “voluntary 
exchange plan” for Hallett. Although this latter resolution 
does not refer to the purpose of integration, as did Resolu­
tion 1531, its intention seems to be substantially similar 
to that of 1531 with regard to the Hallett situation.

Smiley Junior High School (Smiley is located at 2540 
Holly Street.) 1

1. In 1968 Smiley Junior High School was 23.6 percent 
Anglo, 71.6 percent Negro and 3.7 percent Hispano. The 
elementary school feeders for Smiley are Hallett (10.1 
percent Anglo, 84.4 percent Negro, 3.7 percent Hispano); 
Park Hill (71 percent Anglo, 23.2 percent Negro, 3.9 per­
cent Hispano); Smith (2.8 percent Anglo, 94.9 percent 
Negro, 1.6 percent Hispano); Philips (55.3 percent Anglo, 
36.6 percent Negro, 5.2 percent Hispano); Stedman (3.9 
percent Anglo, 92.4 percent Negro, 2.9 percent Hispano); 
Ashley (85.8 percent Anglo, 6.4 percent Negro, 5.8 percent 
Hispano); and Harrington (5.0 percent Anglo, 77.7 percent 
Negro, 15.2 percent Hispano). Because of Negro popula­
tion movement into this area, it is substantially certain that 
continuance of the boundaries as reestablished by repeal 
of Resolutions 1520 and 1524 will result in Smiley becom­
ing almost completely Negro in the future.

Opinion of District Court of August 14, 1969



31a

2. Smiley has the second highest number of minority 
teachers of any junior high school in the city. There are 
23 Negro and Hispano teachers at Smiley, while no other 
junior high school, with the exception of Cole, has more 
than six teachers from racial minority groups.

3. In light of the racial composition of the Smiley stu­
dent body and faculty in 1968, the racial composition of the 
Smiley feeders, and Negro population movement into the 
area, we find that in 1968 Smiley was a segregated school.

4. In 1969 the School Board undertook to correct the 
segregated situation at Smiley by the adoption of Resolu­
tions 1520 and 1524. These Resolutions were designed to 
desegregate Smiley by a substantial alteration of junior 
high school boundary lines. Had the Resolutions been 
implemented, the racial composition of Smiley would have 
been 72 percent Anglo, 23 percent Negro, and 5 percent 
Hispano.

5. On June 9, 1969, the Board repealed Resolutions 1520 
and 1524. The effect of this repeal was to reestablish 
Smiley as a segregated school by affirmative Board action. 
At the time of the repeal, it was certain that such action 
would perpetuate the racial composition of Smiley at over 
75 percent minority and that future Negro population 
movement would ultimately increase this percentage. Thus, 
the Board acted with full knowledge of exactly what the 
consequences of the repeal would be. We, therefore, find 
that the action of the Board in rescinding Resolutions 1520 
and 1524 was wilful as to its effect on Smiley.

Opinion of District Court of August 14, 1969



32a

Opinion of District Court of August 14, 1969 

East High School (East is located at 1545 Detroit Street.)

1. Before passage of Resolution 1520, East High School 
was approximately 54 percent Anglo, 40 percent Negro 
and 7 percent Hispano. Resolution 1520 would have re­
duced the racial minority enrollment at East to 32 percent. 
Neither before nor after the passage of 1520 could East 
be considered a segregated school.

2. The boundary changes embodied in Resolutions 1520, 
1524, and 1531 would have indirectly affected the racial 
composition of East through changes in East’s feeder 
schools. Rescission of these Resolutions might, through 
the feeder system, result in a segregated situation at East 
in the future.

Summary of F indings

All of the elementary schools discussed in the supple­
mental findings set forth above are located in the Park 
Hill area. There is a high degree of interrelationship among 
these schools, so that any action by the Board affecting the 
racial composition of one would almost certainly have an 
effect on the others. Furthermore, since all of these ele­
mentary schools operate as feeders for Smiley Junior High 
School (with the exception of Barrett), any factors affect­
ing the racial composition of the elementary schools will 
also have a similar effect on Smiley. It is significant to 
note that Board actions between 1960 and 1969, such as 
the 1962 and 1964 boundary changes, dealt with the entire 
Park Hill area and had some effect on each school in that 
section of the city. Thus, the Board itself has continu­
ously recognized the interrelationship of schools in north­
east Denver.



33a

Between 1960 and 1969 the Board’s policies with respect 
to these northeast Denver schools show an undeviating 
purpose to isolate Negro students first in Barrett, and 
later in Stedman and Hallett while preserving the Anglo 
character of schools such as Philips and Park Hill. The 
ultimate effect of the Board’s actions and policies in the 
face of a steady influx of Negro families into the area was 
to create and maintain segregated situations at Barrett, 
Stedman, and Hallett which ultimately led to a substan­
tially segregated situation at Smiley.

In adopting Resolutions 1520, 1524 and 1531, the Board 
recognized its constitutional responsibility to desegregate 
schools in northeast Denver. These Resolutions were 
adopted by a five to two majority following the recom­
mendations of both the Special Study Committee created 
in 1962 and a second committee created in 1966, and recom­
mendations contained in the report of Dr. Gilberts and the 
Board staff submitted in October 1968. The reports of 
the 1962 and 1966 committees made clear that the con­
tinued rigid adherence to the established school boundary 
lines had led to segregation in several Park Hill schools. 
These Resolutions constituted legitimate legislative action 
designed to remove the segregation in Park Hill schools 
by means which were both moderate and reasonable in light 
of existing conditions.

Resolutions 1520, 1524, and 1531 were designed to relieve 
segregation in Barrett, Stedman, Hallett and Smiley by 
altering school district boundaries. Among other things 
these Resolutions would have transferred heavily concen­
trated Negro portions of the Barrett, Park Hill, Philips 
and Smiley districts to predominantly Anglo schools, while 
transporting a substantial number of Anglo students to 
the segregated schools. Segregation at Hallett and Sted-

Opinion of District Court of August 14, 1969



34a

man was to be relieved by a vigorous policy of voluntary 
bussing. Although at the time these Resolutions were 
passed Philips and Park Hill schools were not segregated, 
the Board recognized that they were key elements in deal­
ing with the interrelated situation in northeast Denver 
and that any overall scheme for desegregating Barrett, 
Hallett, Stedman and Smiley would necessarily require 
affirmative action with respect to Park Hill and Phillips.

On June 9, 1969, the Board rescinded Resolutions 1520, 
1524 and 1531. This action was taken with little study and 
was not justified in terms of educational opportunity, edu­
cational quality or other legitimate factors. The only stated 
purpose for the rescission was that of keeping faith with 
the will of the majority of the electorate.

The effect of the rescission was to restore and perpetuate 
the status quo as it existed in northeast Denver prior to 
the passage of Resolutions 1520, 1524 and 1531. This status 
quo was one of segregation at Barrett, Hallett, Stedman 
and Smiley. As a replacement for proposals embodied in 
Resolutions 1520, 1524, and 1531, the Board adopted Reso­
lution 1533 which in essence provides for desegregation on 
a voluntary basis, a program which has been unsuccessful 
and which furnishes little promise.

Conclusions o f  L a w

1. The policies and actions of the Board prior to the 
adoption of Resolutions 1520, 1524 and 1531, which conduct 
is specifically described in the foregoing findings, consti­
tute de jure segregation.

2. The adoption of Resolutions 1520, 1524 and 1531 was 
a bona fide attempt of the Board to recognize the constitu­
tional rights of the persons affected by the prior segrega­
tion.

Opinion of District Court of August 14, 1969



35a

3. The rescission of Resolutions 1520,1524 and 1531 was 
a legislative act which had for its purpose restoration of 
the old status quo and was designed to perpetuate segrega­
tion in the affected area. This act in and of itself was an 
act of de jure segregation. It was unconstitutional and 
void.

4. Section 407(a) of the Civil Rights Act of 1964, Title 
42 U.S.C. §2000e-6(a) has been fully considered. It does 
not apply to a private civil rights action asserting viola­
tion of the Constitution. A supplemental opinion will ex­
pound the reasons in support of this conclusion.

P reliminary I njunction

This matter having come on for hearing upon remand by 
the Court of Appeals for the Tenth Circuit on the motion 
of plaintiffs for a preliminary injunction, and the Court 
having heard the testimony of the witnesses, having re­
viewed and considered the exhibits in evidence herein, and 
having heard the statements of counsel:

The Court finds that:
1. The Court has jurisdiction over the subject matter 

of this action under 28 U.S.C. Sections 1343(3) and 1343(4). 
This is a civil action authorized by law and arising under 
Title 42 U.S.C. Section 1983 and the Fourteenth Amend­
ment of the Constitution of the United States;

2. The Court has jurisdiction over the parties herein;
3. Plaintiffs and the classes which they represent have 

no adequate remedy at law;
4. Unless this preliminary injunction issues, plaintiffs 

and the classes which they represent will suffer irreparable 
injury;

Opinion of District Court of August 14, 1969



36a

5. Plaintiffs and their classes have demonstrated a rea­
sonable probability that they will ultimately prevail upon 
a full trial of the merits herein.

Based upon the foregoing findings together with those 
contained in the opinion heretofore rendered it is

Ordered, adjudged and decreed that the motion for a 
temporary injunction should be and the same is hereby 
granted to the following extent:

The defendants, their agents and servants are enjoined 
and restrained, during the pendency of this action, from 
any conduct which would modify the status quo as it ex­
isted prior to June 9, 1969, in respect to acquisition of 
equipment, destruction or relocation of documents, writings 
and memoranda, and are further enjoined and restrained 
from implementing Resolution 1533, insofar as that Resolu­
tion is an integral part of the rescission of Resolutions 
1520, 1524 and 1531, and would seek to restore the segre­
gated conditions which existed prior to the adoption of 
Resolutions 1520, 1524 and 1531.

The defendants, their agents and servants are further 
ordered to make effective the following integration policies:

Resolution 1520 insofar as it applies to Smiley Junior 
High School (specifically, paragraphs six and seven of 
the boundary changes embodied in the said Resolution 
1520);

Resolution 1524 insofar as it applies to Smiley Junior 
High School (specifically, paragraphs one through nine, 
inclusive, of the boundary changes embodied in Resolution 
1524) (paragraphs eight and nine being necessary to the 
desegregation of Smiley Junior High School). Paragraphs 
A, B, C, and D of Resolution J524, which deal with Cole

Opinion of District Court of August 14, 1969



37a

Junior High School, are not here considered, but nothing 
herein contained is intended to prevent the implementa­
tion of those boundary changes. Ruling on these changes 
is reserved until the trial.

Resolution 1531 insofar as it applies to boundary changes 
concerning Barrett, Park Hill and Philips Elementary 
Schools, and insofar as it directs the Superintendent to 
establish Hallett Elementary School as a demonstration 
integrated school through voluntary transportation and to 
continue the practice of transporting students from Sted- 
man Elementary School to relieve overcrowding and to 
permit the removal of mobile classroom units at that school.

Resolutions 1520, 1524 and 1531 do not expressly call 
for compulsory transportation; however, the Board has 
had for many years and now has a policy of transporting 
students who live a certain distance from their schools. 
Such transportation is probably necessary in order to carry 
out this decree, but nothing in this order shall be construed 
to require the Board to use such transportation if it can 
be dispensed with.

Nothing in this order shall prevent the School Board 
from proposing and submitting to this Court any other 
plan for integration.

Rulings concerning East High School and Cole Junior 
High School are hereby reserved pending consideration 
of this action at the trial on the merits.

This temporary injunction shall continue during the 
pendency of this suit and until the action is tried on its 
merits.

Opinion of District Court of August 14, 1969



38a

CO
Appendix A

Opinion of District Court of August 14, 1969



Opinion of District Court of August 14, 1969

Opinion A s to Applicability op Section 407(a) 
op the Civil R ights A ct of 1964

The Court of Appeals for the Tenth Circuit has re­
manded this case in part for this Court’s prior determina­
tion of the applicability and effect of Section 407 (a) of the 
Civil Rights Act of 1964 (42 U.S.C. § 2000c-6(a)), which 
Section contains the following proviso:

provided that nothing herein shall empower any official 
or court of the United States to issue any order seeking 
to achieve a racial balance in any school by requiring 
the transportation of pupils or students from one school 
to another or one school district to another in order to 
achieve such racial balance, or otherwise enlarge the ex­
isting power of the court to insure compliance with 
constitutional standards.

We have considered the arguments of counsel, both oral 
and in briefs. We conclude that the above proviso does 
not limit the power of this Court to direct the School Board 
to implement Resolutions 1520, 1524 and 1531 to the extent 
ordered.

Section 407(a) refers to actions brought by the Attorney 
General of the United States under the authority granted 
him by that Section. The proviso appears in this context, 
and thus on its face does not apply to a case such as this, 
which is not brought by the Attorney General. Defendants 
call our attention to a comment made by then Senator 
Humphrey during Congressional debate on the Act to the 
effect that the proviso applies to the entire 1964 Civil Rights 
Act. Assuming that construction to be correct, the instant



40a

case is not brought under the 1964 Civil Eights Act but 
rather under 28 U.8.C. § 1343 and 42 IT.S.C. § 1983.

The legislative history of Section 407 (a) indicates that 
the proviso meant only that Congress was not taking a 
position on the question of the propriety of transportation 
to achieve racial balance in a case of de facto segregation. 
See United States v. Jefferson County Bd. of Ed., 372 F.2d 
836, 880 (5th Cir. 1966), aff’d on rehearing with order modi­
fied, 380 F.2d 385 (5th Cir. 1967) (en bance).

We have concluded that the instant case is one in which 
the Board has actively contributed to the segregated condi­
tions found to exist. The act applies, if at all, to a de facto 
segregation situation. The Court of Appeals for the Sev­
enth Circuit made this distinction in United States v. School 
District 151 of Cook County, Illinois, 404 F.2d 1125 (7th 
Cir. 1968), where it was held that the proviso in Section 
407(a) had no application where transportation was “not 
done to achieve racial balance, although that may be a re­
sult, but to counteract the legacy left by the Board’s history 
of discrimination.” 404 F.2d at 1130. Counteracting a 
legacy is precisely what the order in the instant case is 
intended to do.

The language of the proviso indicates that its purpose 
was to prevent the implication that Section 407(a) enlarged 
the powers of the federal courts. The proviso states that the 
Section grants a court no power to order transportation 
to achieve racial balance, nor does the Section “otherwise 
enlarge the existing power of the court to insure compli­
ance with constitutional standards.” The equitable powers 
of the courts in directing compliance with constitutional 
mandates exist independent of the 1964 Civil Eights Act. 
United States v. Jefferson County Bd. of Ed., 372 F.2d 836,

Opinion of District Court of August 14, 1969



41a

880 (5th Cir. 1966). The proviso merely explains that Sec­
tion 407 (a) is not to be construed to enlarge the powers of 
the courts; it does not limit those powers.

It would be inconsistent to construe the proviso as a limi­
tation on the power of the courts to correct a deprivation 
of rights which Section 407(a) itself is intended to remedy. 
The Congressional policy behind the 1964 Act should not be 
diluted by such a construction.

In United States v. School District 151 of Cook County, 
Illinois, 286 F.Supp. 786 (N.D.I11.1968), the district court 
considered the instant question and concluded:

That provision of 42 U.S.C. § 200Gc-6 which with­
holds from the courts the power to require transporta­
tion of pupils to overcome racial imbalance in public 
schools must be construed to relate to so-called de facto 
or adventitious segregation. It is inapplicable where, 
as here, the existing segregation of pupils and teachers 
is inseparable from the practices and policies of the 
defendants. 286 F.Supp. at 799.

In affirming this construction of the statute the Court of 
Appeals for the Seventh Circuit used the following strong 
language:

Defendants next contend that they have no constitu­
tional duty to bus pupils, in the District, to achieve a 
racial balance. It is true that 42 U.S.C. § 2000c-6 with­
holds power from officials and courts of the United 
States to order transportation of pupils from one 
school to another for the purpose of achieving racial 
balance. However, this question is not before us. Al­
though we recognize that past residential segregation 
itself, in the District, severely unbalanced racially the

Opinion of District Court of August 14, 1969



42a

school population, the district court’s judgment is di­
rected at the unlawful segregation of Negro pupils 
from their White counterparts which is a direct result 
of the Board’s discriminatory action. Therefore, the 
district court’s order is directed at eliminating the 
school segregation that it found to be unconstitutional, 
by means of a plan which to some extent will distribute 
pupils throughout the District, presumably by bus. 
This is not done to achieve racial balance, although that 
may be a result, but to counteract the legacy left by 
the Board’s history of discrimination.

The Constitution forbids the enforcement by the 
Illinois School District of segregation of Negroes from 
Whites merely because they are Negroes. The congres­
sional withholding of the power of courts in Section 
2000c-6 cannot be interpreted to frustrate the constitu­
tional prohibition. The order here does not direct that 
a mere imbalance of Negro and White pupils be cor­
rected. It is based on findings of unconstitutional, pur­
poseful segregation of Negroes, and it directs defen­
dants to adopt a plan to eliminate segregation and re­
frain from the unlawful conduct that produced it. 
United States v. School District 151 of Cook County, 
Illinois, 404 F.2d 1125, 1130 (7th Cir. 1968).

Judge Wisdom, writing for the Court of Appeals for the 
Fifth Circuit in the Jefferson County case, also considered 
the applicability of the statute to a de jure case and deter­
mined that it did not apply.

The above are the sum total of court decisions on the 
subject. However, they dispel any doubt as to its applica­
bility.

Opinion of District Court of August 14, 1969



43a

Opinion of District Court of August 14, 1969

We add that in reevaluating the case in light of the stat­
ute and in reconsidering Resolutions 1520, 1524 and 1531, 
we determined that the effort in 1520 to desegregate East 
High School was not within the amhit of a preliminary 
injunction either because of the statute or for the equally 
good reason that the evidence as of now fails to disclose a 
condition at East which merits a preliminary injunction.



44a

UNITED STATES DISTRICT COURT 
D. Colorado 

Civ. A. No. C-1499 
March 21, 1970

Opinion o f District Court o f March 2 1 , 1970

W ilfred K eyes, individually and on behalf of Christi Keyes,
a minor, et al.,

Plaintiffs,
v.

School District Number One, Denver, Colorado, the Board 
of Education, School District Number One, Denver, 
Colorado, William C. Berge, individually and as Presi­
dent, Board of Education, School District Number One, 
Denver, Colorado, Stephen J. Knight, Jr., individually 
and as Vice President, Board of Education, School Dis­
trict Number One, Denver, Colorado, James C. Perrill, 
Frank K. Southworth, John H. Amesse, James D. Voor- 
hees, Jr., and Rachel B. Noel, individually and as mem­
bers, Board of Education, School District Number One, 
Denver, Colorado; Robert D. Gilberts, individually and 
as Superintendent of Schools, School District Number 
One, Denver, Colorado,

Defendants.
Mr. and Mrs. Douglas Barnett, individually and on behalf 

of Jade Barnett, a minor, et al.,
Intervening Defendants.

Memorandum Opinion and Order 

W illiam E. Doyle, District Judge.
This is an action in which plaintiffs, parents of children 

attending Denver Public Schools, sue individually and on



45a

behalf of their minor children. It is also brought on behalf 
of a class and has proceeded as a Rule 23 class action.

The complaint contains numerous causes of action and 
counts, but essentially it is complained that

(1) The Board of Education for School District No. One, 
Denver, unconstitutionally rescinded certain resolutions 
which were designed to desegregate specific schools within 
the District;

(2) The named defendants have created and/or main­
tained segregated student bodies and faculties in many of 
the schools in School District No. One;

(3) The said School District has provided an unequal 
educational opportunity to students attending segregated 
schools within the District.

Plaintiffs pray for a declaratory judgment that the above 
acts are unconstitutional and also seek broad injunctive 
relief prohibiting the defendants from continuing their 
prior policies and requiring them to remove the effects of 
their unconstitutional acts.

In July 1969, an extensive trial was had on plaintiffs’ 
motion for a preliminary injunction as to their first claim 
for relief, which claim alleged that the rescission of the 
remedial School Board Resolutions 1520, 1524 and 1531 was 
an unconstitutional act. This Court held that this attempted 
rescission was in fact unconstitutional, and ordered that 
specified portions of Resolutions 1520, 1524 and 1531 be 
effectuated pending full trial on the merits. Keyes v. School 
District No. 1, Denver, Colorado, 303 F.Supp. 279 (D.Colo.), 
Supplemental Findings and Conclusions, 303 F.Supp. 289 
(D.Colo. 1969).

Opinion of District Court of March 21, 1970



46a

In February 1970, the case was tried on its merits. The 
plaintiffs, the defendants and the intervening defendants 
were fully heard. This was a trial which continued for 
fourteen trial days. It produced over 2,000 pages of testi­
mony and several hundred exhibits. Thus, the case has been 
fully tried with the exception of submission by the parties 
of tangible plans. This phase of the case was deferred 
pending decision on the issues involving alleged discrimina­
tion.

Plaintiffs’ first claim for relief deals solely with the pur­
pose and effect of the rescission of Resolutions 1520, 1524 
and 1531. Plaintiffs’ second claim for relief consists of three 
counts.1 The first count of the second claim alleges that 
the Board of Education has purposely created and/or main­
tained racial segregation in certain schools within the Dis­
trict through boundary changes, school site selection and 
the maintenance of the neighborhood school policy. The 
second count alleges that the segregated schools within the 
District are grossly inferior and provide an unequal educa­
tional opportunity for minority students; that these schools 
do not even meet the separate but equal standard of Plessy 
v. Ferguson and that the Board is obligated to remedy this 
inequality regardless of its cause.

Finally, plaintiffs contend that several schools were 
created and/or maintained as segregated schools by actions 
of the Board, and that regardless of purpose or intent these 
acts are unconstitutional. We will deal first with the schools 
which were the subject of the preliminary hearing, consider­
ing the explanatory evidence offered at trial. Secondly, we 
will consider the evidence which has been offered relative 1

Opinion of District Court of March 21, 1970

1 The plaintiffs’ fourth count of the second claim for relief, based 
upon maintenance of a “track system,” has been abandoned.



47a

to segregation and discriminatory educational opportunity 
in the core city schools and, finally, we will discuss possible 
remedies.

I.
Plaintiffs’ first claim for relief alleges that the rescission 

of School Board Resolutions 1520, 1524 and 1531 was un­
constitutional because its purpose and effect was to perpe­
tuate racial segregation in the affected schools. This claim 
for relief was the subject of the hearing on plaintiffs’ mo­
tion for preliminary injunction.

Resolutions 1520, 1524 and 1531, promulgated in 1969, 
were designed to relieve segregation and the tendency 
toward segregation in schools located in the Park Hill area 
of Northeast Denver. These schools include Barrett, Sted- 
man, Hallett, Smith, Phillips and Park Hill Elementary 
Schools; Smiley and Cole Junior High Schools; and East 
High School.

The evidence presented at the preliminary hearing has 
been fully incorporated in the present record. We deem 
it unnecessary to describe it in detail since it is fully set 
forth in 303 P.Supp. 279, 289. A recap will, however, serve 
to bring those proceedings into context.

Prior to 1950', the Negro population of Denver was con­
centrated in a portion of the city known as “Five Points,” 
which is located west of Park Hill. Beginning in 1950, the 
Negro population began an eastward migration which, by 
1960, had reached Colorado Boulevard, a natural dividing 
line. Since 1960, this migration has extended east of 
Colorado Boulevard into Park Hill. It is the acts of the 
defendants, taken in the face of this population movement, 
which plaintiffs contend created the de jure segregation 
complained of in the first claim for relief.

Opinion of District Court of March 21, 1970



48a

Barrett Elementary School was opened in 1960 at East 
29th Avenue between Jackson Street and Colorado Bou­
levard. The site selected for Barrett, along with the size 
of the school and its established boundary lines insured 
that it would be a segregated school from the date of its 
opening.2 Prom these and other facts, we concluded at the 
preliminary hearing, and we now affirm that holding, that 
the School Board intended to create Barrett as a segregated 
school and prevent Negro children from attending the pre­
dominantly Anglo schools east of Colorado Boulevard.

At trial (on the merits) defendants attempted to justify 
Barrett on the ground that until 1964 the Board maintained 
a racially neutral policy. Racial and ethnic data were not 
maintained by the District, and race was not considered 
as a factor in any decision. Defendants further stated that 
(1) the Barrett site had been owned by the District since 
1949 and a school wTas needed in that general vicinity; (2) 
Colorado Boulevard was established as the eastern bound­
ary of the Barrett attendance zone because it was a six 
lane highway and would have been a safety hazard were 
children required to cross it; and (3) Barrett was built 
relatively small because its main function was to relieve 
overcrowding in existing schools rather than to accommo­
date any significant projected increase in area population.

The above factors fail to provide a basis for inferring 
that a justifiably rational purpose existed for the action 
taken with respect to Barrett. First, the District owned 
other sites east of Colorado Boulevard.3 Had a school been

2 When Barrett opened in 1960, its student body was 89.6 per­
cent Negro.

3 Dr. Oberholtzer testified that at the time Barrett was built, the 
School District also owned sites at 35th and Dahlia and 36th and 
Jasmine (Tr. pg. 2084).

Opinion of District Court of March 21, 1970



Opinion of District Court of March 21, 1970

built on one of these sites, it would have not only served 
the Barrett area, it would also have been integrated. 
Second, the fact that in 1960 many elementary school sub­
districts included areas on both sides of busy thoroughfares 
indicates that safety was not a primary factor in setting 
school boundaries.4 Third, because of Barrett’s small size 
and the location of its subdistrict boundaries, Barrett re­
lieved overcrowding only at the two predominantly Negro 
elementary schools west of Colorado Boulevard while 
affording no relief to the overcrowded Anglo Stedman ele­
mentary school eight blocks east of the Barrett site. 
Finally, at the time the decision to build Barrett at 29th 
and Jackson was made public, a large portion of the Negro 
community opposed the plan on the ground that Barrett 
would clearly be a segregated school. This opposition was 
made known to the Board, and, thus, the School Board 
cannot now claim that it was uninformed as to the racial 
consequences of its decisions. Indeed, at that time it was 
the view of the school administration that it was precluded 
from taking action which would have an integrating effect.

Between 1960 and 1965, several boundary changes were 
made in the Park Hill area and mobile units were employed

4 For example, in 1960, the attendance areas of the following 
elementary schools included areas on both sides of the indicated 
thoroughfares: Teller and Steek (Colorado Blvd.) ; Albion, Park 
Hill, Teller, Stevens, Wyman, Emerson, Evans, Greenlee, Chelten­
ham, and Colfax (Colfax Ave.) ; Crofton and Ebert (Broadway) ; 
Columbian, Cheltenham, Eagleton and Barnum (Federal Blvd.). 
Furthermore, it was the policy of the Board to place an elementary 
school at the center of its attendance area wherever possible. This 
policy was clearly ignored in the case of Barrett.



50a

in some Park Hill schools to relieve overcrowding.5 The 
effect of these various acts on the racial composition of 
Park Hill schools was identical. Each tended to isolate 
and concentrate Negro students in those schools which had 
become segregated in the wake of Negro population influx 
into Park Hill while maintaining for as long as possible 
the Anglo status of those Park Hill schools which still 
remained predominantly white. Prom this uniform pattern 
we concluded that the School Board knew the consequences 
and intended or at least approved of the resultant racial 
concentrations. We find nothing in the evidence presented 
at the trial which detracts from this conclusion.

As noted in our former opinion, in 1962 a Special Study 
Committee on Equality of Educational Opportunity in the 
Denver Public Schools (Voorhees Committee) was created. 
Following a thorough study, the Committee recommended 
that the School Board consider racial, ethnic and socio­
economic factors in establishing boundaries and locating 
new schools, and that boundaries be set so as to establish 
heterogeneous school communities. Pursuant to this recom­
mendation, the Board adopted Policy 5100, which called 
for changes or adaptations which would result in a more 
diverse or heterogeneous racial and ethnic school popula­
tion.

A second study committee (Berge Committee) was estab­
lished in 1966 to examine the policies of the Board with 
respect to the location of new schools in Northeast Denver 
and to suggest changes which would lead to integration of

5 The 1962 and 1964 boundary changes affected Stedman, Hal- 
lett, and Phillips schools. Mobile units were added to Stedman in 
1964 and 1965 and to Hallett in 1965. For a more complete dis­
cussion as to the consequences of these boundary changes and 
mobile units see our opinions on plaintiffs’ motion for preliminary 
injunction, reported at 303 F.Supp. 279 and 303 F.Supp. 289.

Opinion of District Court of March 21, 1970



51a

student population in Denver schools. This committee rec­
ommended that no new schools be built in Northeast 
Denver; that a cultural arts center be established which 
would be attended by students from various schools on a 
half-day basis once or twice a week; that educational centers 
be created; and that a superior school program be initiated 
for Smiley and Baker junior high schools.

After more than six years of studying and discussing 
these committee reports and recommendations, the Board 
in 1968 passed the “Noel Resolution” (Resolution 1490). 
The “Noel Resolution” noted that Policy 5100 recognized 
that continuation of neighborhood schools had resulted in 
the concentration of minority racial and ethnic groups in 
some schools within the District and that these schools 
provided an unequal educational opportunity. The Resolu­
tion directed the Superintendent of Schools to submit to 
the Board a comprehensive plan for the integration of the 
Denver Public Schools.

Pursuant to the “Noel Resolution’s” directive, the Super­
intendent submitted a report entitled “Planning Quality 
Education—A Proposal for Integrating the Denver Public 
Schools.” Between January and April 1969, the Board 
studied the Superintendent’s report and passed three reso­
lutions-—1520, 1524 and 1531. These Resolutions were the 
product of intense study and discussion and were developed 
only after considering some fourteen alternative plans. 
Basically, their purpose was to eliminate segregation in the 
Negro schools in Park Hill while stabilizing the racial com­
position of schools in transition. Thus, these Resolutions 
constituted the first acts of departure from the Board’s 
prior undeviating policy of refusing to take any positive

Opinion of District Court of March 21, 1970



action which would bring about integration of the Park 
Hill schools.6

In May 1969, a School Board election was held. Much of 
the campaign revolved around Besolutions 1520, 1524 and 
1531, especially those portions which called for mandatory 
bussing to relieve segregation. The two candidates who 
had pledged to rescind Besolutions 1520,1524 and 1531 were 
elected. On June 9, 1969, the three Besolutions were re­
scinded and in their stead the Board passed Besolution 
1533, which sought to achieve desegregation on a voluntary 
basis.7 The rescissions were effectuated with little study 
and were justified only as a response to the community 
sentiment expressed in the School Board election.

We concluded at the hearing on preliminary injunction 
that the adoption of Besolutions 1520, 1524 and 1531 was a 
“bona fide attempt of the Board to recognize the constitu­
tional rights of the persons affected by the prior segrega­
tion.” 303 F.Supp. at 295. We further concluded, on the 
other hand, that the act of the Board repudiating these salu­
tary policies was a legislative act and one of de jure segre­
gation.

The rescission of Besolutions 1520, 1524 and 1531 was 
a legislative act which had for its purpose restoration

6 To be sure, the Board had adopted statements of policy, such as 
Policy 5100, suggesting that it had abandoned its prior philosophy. 
However, Besolutions 1520, 1524 and 1531 marked the first time 
the Board had backed up earlier policy statements with affirmative 
action.

7 Resolution 1533 provided for a voluntary exchange program at 
Hallett Elementary School on a reciprocal basis, i. e., a volunteer­
ing pupil from Hallett could transfer to another school if  a pupil 
from that school would volunteer to attend Hallett. The Resolution 
also called for the transfer of 120 Stedman students, on a volun­
tary basis, to other elementary schools where space was available.

Opinion of District Court of March 21, 1970



53a

of the old status quo and was designed to perpetuate 
segregation in the affected area. This act in and of it­
self was an act of de jure segregation. It was uncon­
stitutional and void. 303 F.Supp. at 295.

At trial defendants claimed that the three Resolutions had 
not been implemented at the time of the rescission, and thus 
in effect that no rights had ever vested under them. Yet 
the only apparent purpose of the rescission was to maintain 
a segregated condition at those schools which, but for the 
rescission, would have been afforded considerable relief. 
True, the resolutions had not been carried out, but extensive 
preparations were in progress. In any event, this cannot 
be made to turn on any property right analogy. Plaintiffs 
were deprived of a right to seek and possibly to attain 
equality.

Our preliminary injunction ordered full implementation 
of Resolutions 1520', 1524 and 1531, except to the extent 
that the Resolutions apply to East High School and Cole 
Junior High School. We now hold that the rescission as it 
applied to East and Cole was also unconstitutional. The 
School Board recognized that East High School contained 
growing numbers of minority pupils and that this rapid 
advance toward segregation threatened the high quality of 
education which had always been characteristic of East 
High School. It was, therefore, considered desirable to 
reduce the number of minority students at East and to 
stabilize the racial composition therein.8 Although East 
may not now be a segregated school, it is unquestionably a * 7

Opinion of District Court of March 21, 1970

8 Prior to the passage of Resolution 1520 the racial composition 
at East was approximately 54 percent Anglo, 40 percent Negro and
7 percent Hispano. The effect of the resolution would be to reduce 
minority enrollment at East to 32 percent.



54a

school in transition. Left alone it will quickly become segre­
gated. The School Board, with the passage of Resolution 
1520, was administering preventive justice. It was making 
a reasonable and good faith effort to prevent East from be­
coming a segregated school.

Even though the racial composition at Cole Junior High 
School was not significantly changed by Resolution 1524, 
the Resolution did reduce the pupil membership at that 
school by 275 students. The purpose of this change was to 
decrease the pupil-teacher ratio at Cole and to make room 
for a number of special programs to be instituted there. 
This was also a good faith effort by the Board to improve 
the quality of education at the predominantly Negro Cole. 
The action of the Board in aborting and frustrating this 
effort cannot stand.

We conclude then that the effect of the rescission of 
Resolution 1520 at East High was to allow the trend toward 
segregation at East to continue unabated. The rescission 
of Resolution 1524 as applied to Cole Junior High was an 
action taken which had the effect of frustrating an effort at 
Cole which at least constituted a start toward ultimate im­
provement in the quality of the educational effort there. 
It perhaps looked to ultimate desegregation. We must hold 
then that this frustration of the Board plan which had for 
its purpose relief of the effects of segregation at Cole was 
unlawful. Resolutions 1520 and 1524, as they apply to 
East and Cole, should be implemented.

In reaching the above conclusion, we have very carefully 
considered both the majority and minority opinions in the 
now famous Supreme Court decision of Reitman v. Mulkey, 
387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), and have 
concluded that both opinions fully support the position 
which we have taken.

Opinion of District Court of March 21, 1970



It will be recalled that Mulkey, like the ease at bar, had 
to do with the repeal of legislative acts which recognized 
rights guaranteed by the equal protection clause of the 
Fourteenth Amendment. These were in the form of Cali­
fornia statutes prohibiting the denial by individuals of the 
right to be free and equal regardless of race. The plaintiffs 
were tenants in apartment buildings, who were denied ac­
commodations. By initiative a constitutional amendment, 
Proposition 14, was adopted. This seemingly innocuous 
provision guaranteed to everyone unlimited right to de­
cline to sell or rent his property in his uncontrolled discre­
tion. Thus, Proposition 14, or Article I, Section 26, effec­
tively repealed the statute relied on by plaintiff.

The Supreme Court struck down the California amend­
ment adopted by popular vote and did so despite its neutral 
visage. The Court held that it had the effect of involving 
the state in “private racial discriminations to an unconstitu­
tional degree.” The majority opinion of Mr. Justice White, 
in concluding that this was discriminatory state action, said:

None of these cases squarely controls the case we 
now have before us. But they do illustrate the range 
of situations in which discriminatory state action has 
been identified. They do exemplify the necessity for 
a court to assess the potential impact of official action 
in determining whether the State has significantly in­
volved itself with invidious discriminations. Here we 
are dealing with a provision which does not just repeal 
an existing law forbidding private racial discrimina­
tions. Section 26 was intended to authorize, and does 
authorize, racial discrimination in the housing market. 
The right to discriminate is now one of the basic poli­
cies of the State. The California Supreme Court be­

Opinion of District Court of March 21, 1970



56a

lieves that the section will significantly encourage and 
involve the State in private discriminations. We have 
been presented with no persuasive considerations indi­
cating that these judgments should be overturned. 387 
U.S. at 380-381, 87 S.Ct. at 1634.

Our case is like Mulkey in that it also involves repeal or 
rescission of a previous enactment which extended and up­
held non-discriminatory rights. Our case is stronger than 
Mulkey in that there the statute was brought to bear on 
private transactions. Here, on the other hand, there can be 
no question about whether it is the state which is discrimi­
nating.

The sole basis for the dissenting opinion of Justice Har­
lan was that the constitutional provision was not state ac­
tion; that it was merely a proclamation of state neutrality 
in transactions private in nature. The opinion of Mr. Jus­
tice Harlan states:

In the case at hand California, acting through the 
initiative and referendum, has decided to remain ‘neu­
tral’ in the realm of private discrimination affecting 
the sale or rental of private residential property; in 
such transactions private owners are now free to act 
in a discriminatory manner previously forbidden to 
them. In short, all that has happened is that California 
has effected a pro tanto repeal of its prior statutes 
forbidding private discrimination. This runs no more 
afoul of the Fourteenth Amendment than would have 
California’s failure to pass any such antidiscrimination 
statutes in the first instance. The fact that such repeal 
was also accompanied by a constitutional prohibition 
against future enactment of such laws by the California

Opinion of District Court of March 21, 1970



57a

Legislature cannot well be thought to affect, from a 
federal constitutional standpoint, the validity of what 
California has done. The Fourteenth Amendment does 
not reach such state constitutional action any more 
than it does a simple legislative repeal of legislation 
forbidding private discrimination. 387 U.S. at 389, 87 
S.Ct. at 1638.

It cannot be argued in the case at bar that the legislative 
action of the School Board was neutral. The Board specif­
ically repudiated measures which had been adopted for the 
purpose of providing a measure of equal opportunity to 
plaintiffs and others. The School Board action was, to say 
the least, not neutral and the causal relation between the 
School Board action and the injuries is direct. We find and 
conclude then that Mulkey not only supports our position, 
it is a compelling authority in support of the conclusion 
which we have reached. It is so closely analogous that we 
would be remiss if we failed to follow it.

II.
The evidentiary as well as the legal approach to the 

remaining schools is quite different from that which has 
been outlined above. For one thing, the concentrations of 
minorities occurred at an earlier date and, in some in­
stances, prior to the Brown decision by the Supreme Court. 
Community attitudes were different, including the attitudes 
of the School Board members. Furthermore, the transitions 
were much more gradual and less perceptible than they were 
in the Park Hill schools.

Still another distinguishing point is that we do not here 
have legislative action similar to the rescission of Resolu­
tions 1520, 1524 and 1531.

Opinion of District Court of March 21, 1970



58a

The first count of plaintiffs’ second claim for relief al­
leges that de jure segregation exists at Manual High School; 
Cole Junior High School; Morey Junior High School; 
Boulevard Elementary School; Columbine Elementary 
School and Harrington Elementary School as a result of 
School Board action designed to isolate Negro and Hispano 
children in the above schools. Furthermore, plaintiffs claim 
that this intentional isolation of minority children aggra­
vated or produced the segregated condition of the schools 
in question.

In support of their allegations, plaintiffs have offered 
boundary changes and other acts on the part of the School 
Board as constituting de jure segregation.

Before discussing the acts which are relied on, one other 
factor needs to be mentioned. In some of the schools there 
are concentrations of Hispanos as well as Negroes. Plain­
tiffs would place them all in one category and utilize the 
total number as establishing the segregated character of 
the school. This is often an oversimplification (certainly if 
relief is to be granted in a school, the Hispano should re­
ceive the same benefit as the Negro.) The plaintiffs have 
accomplished this by using the name “Anglo” to describe 
the white community. However, the Hispanos have a wholly 
different origin, and the problems applicable to them are 
often different.

One of the things which the Hispano has in common with 
the Negro is economic and cultural deprivation and dis­
crimination. However, whether it is permissible to add the 
numbers of the two groups together and lump them into a 
single minority category for purposes of classification as a 
segregated school remains a problem and a question.

It would seem then that to the extent that Hispanos, as a 
group, are isolated in concentrated numbers, a school in

Opinion of District Court of March 21, 1970



59a

which this has occurred is to be regarded as a segregated 
school, either de facto or de jure.

We turn now to a consideration of the evidence offered by 
plaintiffs regarding boundary changes and elimination of 
optional areas, which evidence is presented in support of 
their argument that de jure segregation exists in the affected 
schools. Our comments and legal conclusions will follow.

1. New Manual High School (Location: 1700 East 28th 
Avenue. Present Racial Composition: 60.2 percent Negro, 
27.5 percent Hispano, 8.2 percent Anglo)

Both the old and the new Manual were and are located in 
the older part of the city. This is an area which has long 
been occupied by the Negroes and is now partly occupied 
by the Hispanos as well. In the very earliest days of Denver 
it probably had no racial or ethnic character, and before 
the Negroes it was in all likelihood occupied by laboring 
people of various national origins.

The Negro movement has always been eastward because 
this has been the only open corridor, and this continues to 
be the case. Plaintiffs’ big complaint is that the school was 
built in this old location and was thus earmarked for minor­
ity occupants. However, we have to be mindful of the 
evidence that it was opened in 1953 at a time prior to Brown 
v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873 (1954), and we are told that this location had the con­
sent of the people in the neighborhood. At that time there 
was much less concern about minority concentration. The 
community concern was with the nature and character of 
the new facility. In any event, the new Manual High School 
had the same attendance boundaries as the old. The eastern 
boundary of the mandatory Manual attendance zone was be­

Opinion of District Court of March 21, 1970



60a

tween Williams and High. Streets, just one-half block east 
of the school site.9

In 1953, Manual was operating under its capacity, while 
East High School, to the southeast, was filled to capacity.10 
Although data is not available as to the 1953 Hispano en­
rollment at Manual, we know that in 1949-50 this figure was 
23.5 percent. The Negro enrollment at Manual in 1953 was 
35 percent. We can infer, therefore, that when new Manual 
opened in 1953, it was a minority school if Negroes and 
Hispanos are aggregated. Nearby East High School was 
predominantly Anglo, with a Negro enrollment of only two 
percent.

By 1956, Manual High School was 42 percent Negro. 
Whereas in 1953 the Williams-High boundary of the Manual 
attendance zone was approximately co-terminus with the 
easternmost point of Negro population movement, by 1956 
the Negro population had expanded eastward to roughly 
York Street. In January 1956, the school administration 
recommended that the Manual boundary be moved east to 
York Street, thus including a portion of the former East-

Opinion of District Court of March 21, 1970

9 The new Manual attendance area was irregularly shaped with 
its northern boundary at the city limits, its western boundary at 
the Platte River, and its southern boundary at 17th Avenue. Only 
the eastern boundary, between Williams and High Streets, is rele­
vant for the purposes of this case.

10 The capacity utilization of a school is a function of school size 
and number of students. Plaintiffs have computed school capacity 
by using the figure of 30 students per room multiplied by the num­
ber of rooms in the school. Defendants contend that this is unreal­
istic, because at lower achieving schools the student-teacher ratio 
has been reduced, so that, for example, 25 students per room may 
constitute capacity. Throughout this opinion, the lower achieving 
schools will be considered undercapacity only where the degree of 
undercapaeity as represented by plaintiffs’ data is so great that it 
cannot be explained purely in terms of a lower teacher-pupil ratio.



61a

Manual optional zone.11 This proposed boundary, therefore, 
coincided with the eastern movement of Negro population 
in that area.

The 1956 Manual boundary change was resisted by some 
members of the Negro community on the ground that it 
would serve to contain Negro students living between Wil­
liams and York at Manual by cutting off their prior option 
to attend East. This concern was communicated to the 
School Board at a series of public meetings. The school ad­
ministration justified the change on the basis of the over­
crowding at East and the underutilization at Manual. 
Manual had sufficient capacity to accommodate more stu­
dents than those to be transferred under the proposed 
boundary change. It was, therefore, suggested that the 
Board move the Manual boundary east to Colorado Boule­
vard. This would have embraced a predominantly Anglo 
neighborhood. Such a move would not only have further 
alleviated overcrowding at East, but would also have had 
some integrating effect at Manual. How much we do not 
know. I t would not have substantially changed its character, 
and the integrating effect would have been temporary, only 
because in a few years this neighborhood became Negro.
2. Cole Junior High School (Location: 3240 Humboldt 
Street. Present Racial Composition: 72.1 percent Negro; 
25.0 percent Hispano; 1.4 percent Anglo)

In 1952, the eastern boundary of Cole Junior High was 
four blocks east of the school, between High and Race 
Streets.11 12 13 At this time Cole was undercapacity while

11 East High School, at this time, had a Negro enrollment of
one percent.

13 Although there is no direct evidence of the racial composition 
of Cole in 1952, we may infer that it was a predominantly minority 
school at that time from the fact that in 1946-47 its racial compo­
sition was 43 percent Anglo; 21 percent Negro; 29 percent Hispano 
and 7 percent “Mongolian.” By 1952 the Negro enrollment at Cole 
had increased to 30 percent.

Opinion of District Court of March 21, 1970



62a

Smiley Junior High, a predominantly Anglo school a short 
distance east of Cole, was overcapacity by approximately 
300 students. Although the empty space at Cole would 
have been utilized to alleviate overcrowding at Smiley, this 
course of action was not taken.13 Instead, the school ad­
ministration determined to construct an addition at Smiley.

In 1956, a boundary change was proposed whereby the 
eastern boundary of Cole would be extended to York Street, 
thus transferring part of the Cole-Smiley optional zone 
to Cole.13 14 This proposed change was criticized by members 
of the Negro community on the ground that its tendency 
was to preclude Negro students who were living between 
Race and York Streets from attending Smiley and would 
force them to attend Cole, which, by this time, was rapidly 
becoming a segregated school. Nevertheless, the Cole- 
Smiley boundary proposal was adopted. After the shift in 
the Cole boundary, Smiley remained overcapacity while 
Cole was substantially undercapacity.

In 1958, another addition was built at Smiley. As in 1952, 
this action was taken notwithstanding that empty spaces 
were available at Cole.

In March 1969, the School Board adopted Resolution 1524, 
which called for the reduction of student population at 
Cole. This action was designed to improve the educational 
opportunity offered to those students remaining at Cole,

13 This would presumably have entailed the transfer of Anglo 
students at Smiley to the predominantly minority Cole.

14 This 1956 boundary change was allegedly made in response to 
the building of Hill Junior High School. However, the Hill at­
tendance zone was carved out of the Smiley, Morey and Gove at­
tendance zones and Cole did not play a significant part in the 
creation of the Hill area. I t is also apparent that the Cole-Smiley 
boundary change of 1956 paralleled the Manual-Bast change of 
that same year, and the objections of many Negro leaders were the 
same with respect to both of these changes.

Opinion of District Court of March 21, 1970



Opinion of District Court of March 21, 1970

while making room for special education programs for low 
achieving students. Resolution 1524 was rescinded in June 
1969“
3. Morey Junior High School (Location: 840 East 14th 
Avenue. Present Racial Composition: 52.4 percent Negro; 
26.8 percent Anglo; 18.6 percent Hispano)

The racial composition of Morey Junior High School in 
1961 was between 65 and 80 percent Anglo. Morey was 
surrounded on four sides by optional zones. In 1962, the 
School Board adopted boundary changes which eliminated 
all but one of the Morey optional zones.* 16 After this eu-

16 We have determined in part I of this opinion that the rescis­
sion of Resolution 1524 was unconstitutional and that Resolution 
1524 should be effectuated with respect to Cole. In this part of 
the opinion we are concerned only with whether further relief is 
warranted with reference to Cole.

16 The 1962 changes involved transferring the Morey-Hill op­
tional zone to Hill; the Morev-Byers optional zone to Byers; the 
Morey-Cole optional zone to Morey; and the Baker-Morey optional 
zone to Morey. The racial composition of each of these areas, as 
reflected by 1960 census tract data, is roughly as follows:

A. Morey-Hill optional zone—0 to 3 percent Negro, 0 to 3 
percent Hispano

B. Morey-Byers optional zone—0 to 3 percent Negro, 0 to 3 
percent Hispano

C. Morey-Cole optional zone—10 percent to over 50.1 percent 
Negro (with the larger portion over 50.1 percent Negro), 
3.1 to 10 percent Hispano

D. Baker-Morey optional zone'—0 to 3 percent Negro, 10.1 to 
25 percent Hispano

Also, a portion of the Cole Junior High mandatory zone was 
transferred to Morey, the racial composition of this area being 
over 50.1 percent Negro and 3.1 to 10 percent Hispano.

A particularly strong protest with respect to the above boundary 
changes was voiced by parents of Anglo children living between 
6th and 8th Avenues in a mandatory Morey attendance zone. They 
asserted that these changes would transform Morey into a minority 
school. In response to this protest the School Board also trans­
ferred this area between 6th and 8th Avenues to Byers, a pre­
dominantly Anglo junior high school.



64a

actment became effective, the estimated Anglo enrollment 
at Morey declined to between 45 and 49 percent. Thus, the 
1962 Morey boundary changes were largely responsible for 
the transformation of Morey from a predominantly Anglo 
school in 1961 to a predominantly minority school in 1962.

The defendants’ testimony was to the effect that these 
changes were made in order to better utilize the capacities 
of Hill, Byers and Baker junior high schools. The testi­
mony also showed that at that time Cole Junior High School, 
which was then predominantly Negro, was overcapacity 
and Morey was the most convenient school available for 
the purpose of accomplishing the objective. The effect, 
of course, was to relieve somewhat the concentration of 
Negroes at Cole, while substantially increasing the number 
of Negroes at Morey.

Undoubtedly, it is possible that the Board could have 
worked out a more equitable distribution, but it cannot be 
said that this was carried out with the design and for the 
purpose of causing Morey to become a minority school. 
The Board could not have escaped criticism for the plain­
tiffs if it had continued the concentration of Negroes at 
Cole rather than transferring them to Morey.
4. Boulevard Elementary School (Location: 2351 Federal 
Boulevard. Present Racial Composition: 68.1 percent His- 
pano, 29.9 percent Anglo)

In 1961, Boulevard Elementary School was undercapac­
ity and its racial composition was 59 percent Anglo and 40 
percent Hispano. Brown Elementary School, five blocks 
wrest of Boulevard, was operating at approximately full 
capacity and was 98 percent Anglo. Ashland Elementary 
School, northeast of Boulevard, was operating at its ca­
pacity and was 61 percent Anglo and 37 percent Hispano. 
The razing of a portion of Boulevard resulted in a de­

Opinion of District Court of March 21, 1970



65a

crease in that school’s capacity, requiring the administra­
tion to adjust the Boulevard boundaries. The western por­
tion of the Boulevard subdistrict was transferred to Brown 
and the southwest part of the Ashland attendance zone was 
assigned to Boulevard. As a result of these boundary al­
terations, the Hispano population of Boulevard was in­
creased to 60 percent while reducing the Anglo enroll­
ment to 39 percent, thus transforming Boulevard from a 
predominantly Anglo to a predominantly Hispano school. 
The school administration denied that this decision had 
any racial or ethnic character, maintaining that it was a 
matter of necessity because of the age and condition of 
the building destroyed.

5. Columbine Elementary School (Location: 2545 East 
28th Avenue. Present Racial Composition: 97.2 percent 
Negro; 2.2 percent Hispano; .6 percent Anglo)

In 1951, Columbine Elementary School was overcapacity 
and its Negro enrollment was 24 percent. Harrington Ele­
mentary was slightly overcapacity and had no Negro stu­
dents. Stedman Elementary School, which has been con­
sidered in part I of this opinion, at 29th and Dexter, was 
operating slightly under its capacity and also had no Negro 
students.

Three optional zones were established around Columbine 
in 1952—Columbine-Harrington; Columbine-Mitchell; and 
Columbine-Stedman. The asserted purpose of this action 
was to relieve overcrowding at Columbine. However, since 
both Harrington and Stedman were operating at approxi­
mately their capacity prior to the creation of the optional 
zones, the effect of the administration’s action was to 
slightly decrease overcrowding at Columbine while cre­
ating an overcrowded situation at Harrington and Sted­
man. Furthermore, a study of the racial composition of

Opinion of District Court of March 21, 1970



66a

these schools one year after the creation of the optional 
zones indicated that the options were apparently employed 
by Anglo students as a means of escaping from Columbine 
to the almost totally Anglo Harrington and Stedman.17

Before considering the legal consequences of the above 
discussed actions of the School Board, there are some other 
facts which should be mentioned. Former Superintendent 
Oberholtzer testified at great length to the fact that the 
administration, including the Board, followed a policy of 
strict neutrality as far as segregation or integration was 
concerned. Indeed, Superintendent Oberholtzer stated 
that even after the decision in Brown v. Board of Educa­
tion, supra, he was of the opinion that it was not permissible 
for him to classify Negroes as such, even for the purpose 
of bringing about integration. Thus, it was his belief that 
he was committed to maintaining the status quo in the 
schools. Other members of the Board also denied vigor­
ously that they had ever been motivated by either an inten­
tion or desire to discriminate. Their testimony was that 
the boundary changes and their other actions were taken 
in order to utilize school capacities and carry out the neigh­
borhood school concept.

In examining the boundary changes and removal of 
optional zones in connection with the several schools which 
are discussed above, we do not find any wilful or malicious 
actions on the part of the Board or the administration 
(in relationship to elementary schools). As to these schools, 
the result is about the same as it would have been had the

Opinion of District Court 0f  March 21, 1970

17 Between 1951 and 1952, the Negro enrollment at Columbine 
jumped from 24 percent to 31 percent, while there was no signifi­
cant increase in Negro enrollment at either Harrington or Stedman. 
Between 1952 and 1955, the Negro enrollment at Columbine in­
creased 38 percent.



67a

administration pursued discriminatory policies, since the 
Negroes and, to an extent the Hispanos as well, always 
seem to end up in isolation. The substantial factor in 
this condition is twofold: First, a failure on the part of 
the Board or of the administration to take any action hav­
ing an integrating effect, and secondly, deeply established 
housing patterns which have existed for a long period of 
time and which have been taken for granted.

It should also be kept in mind that prior to Brown v. 
Board of Education, supra, it was apparently taken for 
granted by everybody that the status quo, as far as the 
Negroes were concerned, should not be disturbed because 
this was the desire of the majority of the community. Time 
and again the Board members testified to the fact that 
in making decisions they held hearings and finally bowed 
to the community sentiment. Thus, they say they did not 
intend to segregate or refuse to integrate. They just found 
the consensus and followed it.

Under the present state of the law, particularly in the 
Tenth Circuit, a condition such as we have described above 
does not dictate the conclusion that this is de jure segre­
gation which calls for an all-out effort to desegregate. It 
is more like de facto segregation, with respect to which 
the rule is that the court cannot order desegregation in 
order to provide a better balance.

It is to be emphasized here that the Board has not re­
fused to admit any student at any time because of racial 
or ethnic origin. It simply requires everyone to go to his 
neighborhood school unless it is necessary to bus him to 
relieve overcrowding.

From the cases, we gleaned the following principles as 
essentials of de jure segregation:

Opinion of District Court of March 21, 1970



68a

(1) The State, or more specifically, the school adminis­
tration, must have taken some action with a purpose to 
segregate;

(2) this action must have in fact created or aggravated 
segregation at the school or schools in question;

(3) a current condition of segregation must exist; and
(4) there must be a causal connection between the acts 

of the school administration complained of and the cur­
rent condition of segregation.

The first of the above requirements actually consists of 
two elements—state action and a purpose to segregate. It 
seems unnecessary to elaborate on the element of state 
action at this time, since plaintiffs here emphasize only 
affirmative official acts.

The important distinguishing factor between de facto 
and de jure segregation is purpose to segregate. See, e. g., 
Board of Education, etc. v. Dowell, 375 F.2d 158 (10th Cir. 
1967), cert, denied, 387 TT.S. 931, 87 S.Ct. 2054, 18 L. 
Ed.2d 993 (1967); Downs v. Board of Education of Kansas 
City, 336 F.2d 988 (10th Cir. 1964), cert, denied, 380 U.S. 
914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965). As the Court of 
Appeals for the Tenth Circuit stated in Dowell, supra:

In Downs the trial court found the plan was not being 
used to deprive students of their Constitutional rights 
and here the trial court, in substance, found to the 
contrary. It is still the rule in this Circuit and else­
where that neighborhood school attendance policies, 
when impartially maintained and administered, do not 
violate any fundamental Constitutional principle or 
deprive certain classes of individuals of their Con­
stitutional rights. 375 F.2d at 166.

Opinion of District Court of March 21, 1970



69a

Segregative purpose may be overt, as in the dual sys­
tem maintained in some states prior to Brown v. Board 
of Education, supra, or it may be covert, in which case pur­
pose normally must be proved by circumstantial evidence. 
In order to satisfy this element of purpose, the intent to 
segregate need not be the sole motive for a school district’s 
action; it need only be one of several factors which mo­
tivated the school administration. Thus, regardless of how 
this purpose is manifested, it is clear that:

the constitutional rights of children not to be dis­
criminated against in school admission on grounds of 
race or color * * * can neither be nullified openly and 
directly by state legislators or state executive or ju­
dicial officers, nor nullified indirectly by them through 
evasive schemes for segregation whether attempted 
“geniously or ingenuously” Cooper v. Aaron, 358 
TT.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5, 19 (1958).

The second requirement, assuming purposeful state ac­
tion, is that the act or acts must have resulted in or sub­
stantially aggravated segregation. A threshold problem 
here is a definition of “segregation.” This term connotes 
first and foremost a very heavy concentration of a minority 
group within the school in question. Once you have a 
predominantly minority school population, other factors 
come into consideration. For example, the racial and eth­
nic composition of faculty and staff, e.g., Bradley v. School 
Board, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965); 
Hobson v. Hansen, 269 F.Supp. 401, 502 (D.D.C. 1967), 
aff’d. sub nom., Smuck v. Hobson, 132 U.S.App.D.C. 372, 
408 F.2d 175 (1969); the equality of educational oppor­
tunity offered at the school; and the community and ad­
ministration attitudes toward the school.

Opinion of District Court of March 21, 1970



70a

The third requirement, that a condition of segregation 
presently exists, recognizes the fact that the term “de 
jure segregation” speaks in present terms. In other words, 
if a past condition of segregation has been remedied, 
either through positive state action or through the natural 
course of events, there is, of course, no present injury jus­
tifying equitable relief.

The final and most important element in this case is 
that of a causal relationship between the discriminatory 
action complained of and the current condition of segre­
gation in the school or schools involved. Thus, it would be 
inequitable to conclude de jure segregation exists where a 
de jure act had no more than a trifling effect on the end 
result which produced the condition.18 In such a case no 
relief can be granted, for it is not the duty of a court of 
equity to punish a school board for all past sins, but rather 
to afford a remedy only where past sins have resulted in 
present injury.

This necessity of a causal connection between present 
injury and past discriminatory acts was recognized in 
Hobson v. Hansen, supra. Prior to 1954 the District of 
Columbia schools had been segregated by law. In 1954 a 
neighborhood policy was adopted in the District. At the 
time the Hobson case was instituted, substantial desegrega­
tion had not been achieved. Plaintiffs, therefore, contended

18 Although past discriminatory acts may not be a substantial 
factor contributing to present segregation, they may nevertheless 
be probative on the issue of the segregative purpose of other dis­
criminatory acts which are in fact a substantial factor in causing a 
present segregated situation. Thus, in part I of this opinion, we 
discussed the building of Barrett, boundary changes and the use of 
mobile units as they relate to the purpose for the rescission of 
Resolutions 1520, 1524 and 1531.

Opinion of District Court of March 21, 1970



71a

that the effects of the dual system still remained and that 
they were entitled to relief. Judge Wright held that the 
dual system was insignificant as a cause of the present 
segregation:

This suit was begun 12 years after the institution of 
the neighborhood school policy, * * #. Many concurrent 
causes have combined with the Board’s 1954 decisions 
in the evolution of present reality. If the segregation 
in the District’s schools is not currently objectionable 
under either an independent de facto or de jure ra­
tionale, it would be very difficult to strike it down 
merely because the neighborhood school policy failed 
to produce sufficient integration when it replaced an 
overt de jure system 13 years ago. 269 F.Supp. at 495.

So also in our case, the complained of acts are remote 
in time and do not loom large when assessing fault or cause. 
The impact of the housing patterns and neighborhood 
population movement stand out as the actual culprits.

Plaintiffs have argued that the construction of the new 
Manual in 1953 at the old site virtually insured its segre­
gated character and that this act, as well as the Manual 
and Cole boundary changes, together with the Smiley addi­
tions at a time when Cole was undercapacity, are acts of 
de jure segregation. Quite apart from the cause element 
which will be discussed further below, it cannot be said 
that the acts were clearly racially motivated. One would 
have to labor hard in order to come up with this conclusion.

It can, however, be concluded that the segregation (or 
racial concentration) which presently exists at Manual and 
Cole, except insofar as Cole was affected by Resolution 
1524 and its rescission as explained above in part I, is not 
de jure. How much of an impact the Board’s decisions at

Opinion of District Court of March 21, 1970



72a

the time had on minority concentrations we do not know. 
We do know that much of the concentration occurred long 
after these decisions were made. For example, the Negro 
population at Cole and Manual increased over 20 percent 
between 1963 and 1968, and the only contribution which the 
Board could have made to that resulted from inaction. An 
essential requisite of a violation of the equal protection 
clause of the Constitution in the present context is positive 
legislative or administrative state action which discrim­
inates on account of race, and which produces the condition 
complained of. The instant situation then cannot be placed 
at the administration doorstep; if cause or fault has to be 
ascertained it is that of the community as a whole in impos­
ing, in various ways, housing restraints.

Similarly, it is doubtful whether the 1952 boundary 
change at Columbine can now be classified as a de jure act. 
To be sure, it increased the minority concentration at 
Columbine; yet there is a dearth of evidence that this was 
accompanied by a purpose to segregate rather than a pur­
pose to eliminate double sessions, which was also a result 
of the change. In any event, as in the case of Manual and 
Cole, this act appears in restrospect to have had little to 
do with the present minority population at Columbine. 
Between 1953, the year following the Columbine boundary 
modification, and 1969, the percentage of Negro enrollment 
at the school more than doubled. Even the 1960 census tract 
data shows that almost the entire Columbine subdistrict 
was in an area with over 50.1 percent Negro population. 
It is not conceivable then that this 1952 boundary change, 
the immediate effects of which were relatively insignificant, 
could be a current cause of segregation at Columbine.

The Boulevard boundary change of 1962 was necessitated 
by the legitimate need to reduce pupil enrollment due to

Opinion of District Court of March 21, 1970



73a

the razing of a portion of the school. Furthermore, there 
is absolutely no evidence presented, other than the fact of 
the 1962 change, upon which to base a finding that the 
School District was motivated by an intent to segregate 
Hispano students at Boulevard Elementary School.

The removal of the Morey Junior High School optional 
zones in 1962 did have the effect of increasing the concentra­
tion of minority students at that school. It also had the 
salutary effect of relieving the concentration of Negro 
students at Cole, a result consistent with defendants’ claim 
that it was carrying out a racially neutral policy. Both the 
desirable and undesirable consequences of the 1962 changes 
appear to have been by-products of a general redistribution. 
In view of that, it would strain both the facts and law to 
say that the administration acted with an unlawful purpose 
or design in this instance.

Moreover, whether Morey is presently a segregated 
school remains a question. To so categorize it requires the 
lumping together of all non-Anglo groups. The current 
racial composition at Morey is 52,4 percent Negro, 26.8 
percent Anglo, 18.6 percent Hispano. Over 80 percent of 
the classroom teachers at Morey are Anglo. Morey is un­
questionably racially imbalanced, is in transition and will 
offer a concentration problem unless the Board acts to 
stabilize it.

Plaintiffs’ further claim is that the neighborhood school 
policy itself has been maintained by the School Board for 
the purpose and with the effect of segregating minority 
pupils to the degree that it is unconstitutional. They rely 
on the rulings of our Court of Appeals that the deliberate 
use of a neighborhood school system, to perpetuate segrega­
tion is unlawful. Board of Education, etc. v. Dowell, 375 
F.2d 158 (10th Cir. 1967), cert, denied, 387 U.S. 931, 87

Opinion of District Court of March 21, 1970



74a

S.Ct. 2054, 18 L.Ed.2d 993 (1967); Downs v. Board of Edu­
cation, 336 F.2d 988 (10th Cir, 1964), cert, denied, 380 U.S. 
914, 85 S.Ct. 898,13 L.Ed.2d 800 (1965). What we have said 
above regarding boundary changes disposes of this conten­
tion. There is no comprehensive policy apparent other than 
the negative approach which has been described which could 
be considered in this context. The Board’s eye-closing and 
head-burying is not the kind of conduct which the Circuit 
Court had in mind in Dowell and Downs.

Finally, the third count of plaintiffs’ second claim for 
relief urges us to adopt a rule of law that a neighborhood 
school policy may in and of itself create and/or maintain 
unconstitutional segregation, even if the adoption of such 
a policy is motivated by legitimate factors. Plaintiffs’ argu­
ment in essence is that the neighborhood school system is 
unconstitutional if it produces segregation in fact. We 
recognize that some courts have moved along this line.19 
However, the law in our Circuit, as enunciated in Downs 
and Dowell, supra, is that a neighborhood school policy, 
even if it produces concentration, is not per se unlawful if:

it is carried out in good faith and is not used as a mask 
to further and perpetuate racial discrimination. Board 
of Education, etc. v. Dowell, 375 F.2d 158, 166 (10th 
Cir. 1967).

The United States Supreme Court has not yet ruled on 
this question, and we are here subject to the strong pro­
nouncements of our Circuit Court. Under these decisions

19 Hobson v. Hansen, 269 F.Supp. 401 (D.D.C.1967), sub nom., 
Smuek v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969) ; 
Barksdale v. Springfield School Committee, 237 F.Supp. 543 (d ! 
Mass.1965), vacated, 348 F.2d 261 (1st Cir. 1965); Blocker v. 
Board of Education, 226 F.Supp. 208 (E.D.N.Y.1964) ; Branche v. 
Board of Education, 204 F.Supp. 150 (E.D.N.Y.1962).

Opinion of District Court of March 21, 1970



75a

plaintiffs are not entitled to relief merely upon proof that 
de facto segregation exists at certain schools within the 
School District.20

In summary then, we must reject the plaintiffs’ conten­
tions that they are entitled to affirmative relief because 
of the above mentioned boundary changes and elimination 
of optional zones. We hold that the evidence is insufficient 
to establish de jure segregation.

III.
The third count of plaintiffs’ second claim for relief 

alleges that defendants are maintaining certain schools 
within the District which provide an unequal educational 
opportunity for the students attending them; that these are 
segregated schools ;21 and that, therefore, the students at 
these schools are being denied the equal protection of the 
law. The plaintiffs seek relief for a large number of schools 
at every level and in various conditions of racial concentra­
tion. These include Barret, Boulevard, Bryant-Webster, 
Columbine, Crofton, Ebert, Elmwood, Fairmont, Fairview, 
Garden Place, Gilpin, Greenlee, Hallett, Harrington, 
Mitchell, Smith, Stedman, Whittier, Wyatt and Wyman 
Elementary Schools; Baker, Cole, Morey and Smiley Junior 
High Schools; and East, Manual and West High Schools.22

20 There is no discernible difference in result between the de facto 
and de jure varieties. Both produce the same obnoxious results, 
but the Supreme Court has so far given its attention to the more 
serious problem of dual schools.

21 Plaintiffs contend that where, as here, it is claimed that schools 
provide an unequal educational opportunity, it is irrelevant whether 
the schools in question are de jure or de facto segregated. This 
point is discussed later in this section.

. 2f  These schools were selected by plaintiffs through use of proba­
bility theory. Thus, they claim that if all children were picked at

Opinion of District Court of March 21, 1970



76a

In addition to the charge that all these schools are segre­
gated,23 plaintiffs maintain these are inferior schools and 
that racial concentration produces the inferiority. They 
use several indicia to establish the inferiority and in­
equality. All of these schools, they say, have (1) low aver­
age scholastic achievement; (2) less experienced teachers; 
(3) higher rates of teacher turnover; (4) higher dropout 
rates; and (5) older buildings and smaller sites.

Extensive and detailed evidence has been presented 
establishing the inferiority of plaintiffs’ target schools. 
Some of these have high concentrations of either Negroes 
or Hispanos. Others are substantial, but at the same time 
relatively marginal in this regard.

It is clear that there is a relationship between racial 
concentration and inferiority in achievement and low 
standards and consequently low morale. However, our mis­
sion is to determine inequality based upon race or ethnic 
origin, we cannot undertake to cure all other ills which 
we might encounter here. The plaintiffs, of course, believe 
that all injustices ever encountered should be rooted out. 
Tentatively, at least, we have determined that for the 
present purpose a concentration of either Negro or Hispano

Opinion of District Court of March 21, 1970

random to attend each school in the District, the probability that 
the present racial composition would result at each of the above 
schools is phenomenally low. We do note that the schools selected 
through this procedure are generally those with the highest con­
centration of minority students in the District.

23 Some of the above schools (Barrett, Smiley and Bast) have 
been considered, and full relief has been granted, in part I of this 
opinion. However, since these schools (with the exception of East) 
were clearly segregated before this suit was instituted, the sta­
tistical data on the educational opportunity provided by them 
prior to their desegregation has some relevance in creating an over­
all picture as to the effect of segregation on educational oppor­
tunity, and hence it is included in the findings of fact which follow.



77a

students in the general area of 70 to 75 percent is a con­
centrated school likely to produce the kind of inferiority 
which we are here concerned with.

In the columnar list below, the elementary, junior and 
senior high schools with respect to which the plaintiffs 
have presented evidence are shown. It is to be noted that 
some of these schools are subject to the findings and conclu­
sions contained in part I of this opinion, but they are never­
theless included here because of their racial concentrations, 
if not in every instance their educational inferiority.

Opinion of District Court of March 21, 1970

E lemejsttaey Schools

School Anglo (%) Negro (%) Hispano
*Barrett 67.0 30.5 1.4
Boulevard 29.9 .5 68.1
Bryant-Webster 23.3 .5 75.5
Columbine .6 97.2 2.2
Crofton 7.3 38.4 51.5
Ebert 10.6 34.6 52.4
Elmwood 7.9 00.0 91.6
Fairmont 19.8 00.0 79.9
Fairview 7.0 8.2 83.2
Garden Place 17.0 17.2 64.7
Gilpin 3.2 36.4 59.4
Greenlee 17.0 9.0 73.0
Hallett 38.2 58.4 2.6
Harrington 2.2 76.3 19.6
Mitchell 2.2 70.9 26.7
Smith 4.0 91.7 3.3
Stedman 4.1 92.7 2.7
Whittier 1.4 94.0 4.5
Wyatt 1.9 46.4 51.5
Wyman 27.5 38.0 29.7



78a

Opinion of District Court of March 21, 1970

J unior H igh Schools

School Anglo (%) Negro (%) Hispano (%)
Baker 11.6 6.7 81.4
Cole 1.4 72.1 25.0
Morey 26.8 52.4 18.6

* Smiley 61.2 30.4 6.9
*Barrett and Smiley have been integrated by the pre-
liminary injunction.

Senior H igh Schools

School Anglo (%) Negro (%) Hispano (%)
East 50.1 39.9 7.4
West 56.6 9.0 34.0
Manual 8.2 60.2 27.5

Based on the rule of thumb adopted above, we are here 
primarily concerned with the following schools: Bryant- 
Webster, Columbine, Elmwood, Fairmont, Fairview, Green­
lee, Hallett, Harrington, Mitchell, Smith, Stedman and 
Whittier Elementary Schools; Baker and Cole Junior High 
Schools; and Manual High School.

A. Achievement

Plaintiffs’ evidence establishes that the scholastic achieve­
ment in the above schools is significantly lower than in the 
other schools in the city. To evidence this, they point to 
the 1968 Stanford Achievement Test results, which results 
are designed to measure the achievement level of each pupil 
in specific scholastic areas, such as spelling, arithmetic, and 
science. Achievement data for elementary, junior and senior 
high schools appears in Appendix I.



Opinion of District Court of March 21, 1970

At the elementary school level, these Stanford Tests 
results are reported in terms of grade level scores for 
the third and fifth grades in May 1968. Since May 1 marks 
the approximate date at which the eighth month of school 
begins, we are told that a third grade student should be 
achieving at a 3.8 level at this time, while a fifth grade 
student should be achieving at a 5.8 level.

We find that in May 1968, the children in the third grade 
at the segregated schools in question achieved at a grade 
level of approximately 2.96, and accordingly, were almost 
one full year below the level at which they should have 
been achieving. With respect to all 91 schools in the Dis­
trict in 1968, the average median grade level was 3.57, or 
approximately six months above the achievement level of 
the schools listed above.

Similarly, the average achievement among fifth grade 
students at the 12 segregated elementary schools was 4.30. 
All fifth graders in the District averaged 5.22, which is 
almost a full year ahead of the 12 segregated schools.

The data with respect to junior high schools, also shown 
in Appendix I, is based upon the May 1968 Stanford 
Achievement Tests, and is reported in terms of percentile 
scores (no grade placement scores were available for 
junior or senior high schools). A percentile score shows 
the percentage of pupils nationally whose scores are below 
the given percentile. For example, if a student’s percentile 
score on a given test is 75, then 75 percent of the students 
in his grade nationally have scored lower on that test. 
Similarly, 25 percent of the students taking the test have 
scored higher.

The average percentile score for all ninth graders on all 
tests administered is 53.8. However, the two segregated 
junior high schools (Baker and Cole) achieved at an aver­



80a

age percentile score of only 28.2. This is some 29 per­
centiles below the average percentile score among all ninth 
graders. It is interesting to note that the highest average 
percentile score of the two segregated junior high schools 
is lower than the lowest average percentile score at any 
of the other junior high schools in the city.

Senior high school data is based upon tests given in May 
1968, to all eleventh grade students in the District, and, 
like the junior high school data, these scores are reported 
in terms of average median percentile.

The average median percentile score for all high schools 
at the eleventh grade level was 52. For Manual, the only 
minority concentrated high school, the average percentile 
score was 30. Thus, at the eleventh grade level Manual 
achievement was some 22 percentiles lower than the high 
school average for the city, and 70 percent of all students 
nationally performed better than the median at Manual.

B. Teacher Experience

Faculty experience is an important factor in determining 
the educational opportunity offered at a particular school, 
and plaintiffs have produced evidence which shows the per­
centage of faculty at a given school with (1) no years of 
prior Denver Public School experience; (2) probationary 
status (0-3 years of experience); and (3) 10 or more years 
experience. Teacher experience data for elementary, junior 
and senior high schools appears in Appendix II. At the 
elementary school level plaintiffs have compiled teacher 
experience data for their 20 target schools and 20 selected 
schools with high Anglo enrollment. We have here selected 
only those schools out of plaintiffs’ list of target schools 
which we find to be segregated, and have compared teacher 
experience in them with teacher experience in plaintiffs’ 
selected Anglo schools.

Opinion of District Court of March 21, 1970



81a

The evidence establishes that in the 12 segregated ele­
mentary schools in 1968, 23.9 percent of the teachers had 
no previous DPS experience, 48.6 percent were on proba­
tion and 17.4 percent had 10 or more years experience. In 
contrast, in the 20 selected Anglo schools, only 9.8 percent 
of the faculty had no previous experience, 25.6 percent 
were on probation and 47.1 percent—nearly half—had 10 or 
more years of experience. Of the 12 segregated elementary 
schools, only one—Bryant-Webster—had a higher percent­
age of teachers with 10 or more years experience than 
teachers with no experience or on probation, while sixteen 
of the 20 Anglo schools had more teachers with 10 or more 
years experience than non-experienced or probationary 
teachers.

As to junior high schools, plaintiffs have introduced 
teacher experience data on all junior high schools in ex­
istence in 1968 (see Appendix II). This evidence estab­
lishes that the segregated schools have more probationary 
and non-experienced teachers and fewer teachers with 10 
or more years experience than the selected Anglo schools.

The data with respect to senior high schools is similar 
to that on junior high schools. As was the case with the 
junior high schools, there are more high school teachers 
with no or little experience and fewer with over 10 years 
at Manual than in other senior high schools.

C. Teacher Turnover
The effect of teacher turnover on the quality of educa­

tional opportunity is twofold. First, a high teacher turn­
over rate tends to have a disorganizing effect on the school 
in question. Furthermore, and more important, the teacher 
turnover rate in a particular school significantly affects 
the experience of the faculty at that school. In the present

Opinion of District Court of March 21, 1970



82a

case, plaintiffs have established that the present policy with 
respect to teacher transfers has the effect of creating a 
much higher turnover rate at predominantly minority 
schools than at predominantly Anglo schools. This in turn 
results in more faculty vacancies at these minority schools 
and the assignment to them of new teachers with little or 
no Denver Public School experience.

Denver Public Schools Policy 1617A deals with transfers 
for faculty. On or about April 20 of each year, the Assistant 
Superintendent for Personnel Services posts in each school 
a list of teaching vacancies to be filled the following 
school year. Those teachers who wish to transfer to schools 
with vacancies submit an application. Although the prin­
cipal criterion for determining whether to grant an appli­
cation for transfer is “whether the request will result in 
the best educational program for the School District,” one 
of the major considerations for filling-vacancies is seniority. 
Thus, teachers with the most seniority are normally given 
preference in making transfers. This transfer policy is 
embodied in an Agreement between School District Number 
One and the Denver Classroom Teachers Association.

This policy results in the more experienced teachers at 
minority schools transferring out of those schools when 
vacancies are opened at predominantly Anglo schools, with 
the resulting vacancies being filled by inexperienced 
teachers.

D. Pupil Dropout Rales

Plaintiffs’ evidence as to dropout rates in junior and 
senior high schools24 is set forth in terms of projected and

24 Since, by law, it is mandatory that children attend school until 
the age of 16, there are no figures as to dropout rate with respect 
to elementary schools.

Opinion of District Court of March 21, 1970



83a

annual dropout rates. The annual dropout rate merely 
indicates the percentage of students who leave school dur­
ing a given year. The projected dropout rate for a given 
year reflects the percentage of students beginning at a 
particular school who will drop out before graduation (see 
Appendix III).

The evidence tends to indicate that, generally, the dropout 
rate is higher at the two segregated junior high schools 
(Baker and Cole) and Manual Senior High School than at 
the other schools in the District.

E. Building Facilities

Plaintiffs have introduced evidence in an attempt to show 
a disparity in the age of school buildings and the size of 
school sites between predominantly minority and predomi­
nantly Anglo schools. We would agree that, in most gen­
eral terms, this disparity exists. However, we do not think 
that the age of a building and site size are, in and of them­
selves, substantial factors affecting the educational oppor­
tunity offered at a given school. However, we do recognize 
that in schools which are segregated, have less experienced 
teachers and produce generally low achieving students, the 
fact that the physical plant is old may aggravate the aura 
of inferiority which surrounds the school.

The above material summarizes plaintiffs’ evidence and 
our findings as to the objective indicia of inequality at the 
schools for which they seek relief. Although plaintiffs claim 
that factors such as inexperienced faculty tend to contrib­
ute to the inferior educational opportunity provided at 
these schools, their main argument is that the segregation 
which exists at many of these schools makes a major con­
tribution to this inferiority.

Opinion of District Court of March 21, 1970



84a

Dr. Dodson, a professor of education at New York Uni­
versity, who has for the past 15 years studied the relation­
ship between the scholastic performance of minority chil­
dren and segregated schools, testified that a segregated 
school adversely affects a Negro child’s ability to achieve. 
He indicated that studies show that by the time a school 
becomes segregated, it is looked upon by the whole com­
munity as being inferior.

At this point, the Negro community does not consider the 
segregated school as a legitimate institution for social and 
economic advancement. Since the students do not feel that 
the school is an effective aid in achieving their goal-—accep­
tance and integration into the mainstream of American life 
—they are not motivated to learn. Furthermore, since the 
parents of these Negro students have similar feelings with 
respect to the segregated school, they do not attempt to 
motivate their children to learn. Teachers assigned to these 
schools are generally dissatisfied and try to escape as soon 
as possible. Furthermore, teachers expect low achieve­
ment from students at segregated schools, and thus do little 
to stimulate higher performance.

The defendants do not acknowledge that segregated 
schools per se produce lower achievement and an inferior 
educational opportunity. They point to other factors, such 
as home and community environment, socioeconomic status 
of the family, and the educational background of the par­
ents as the major causes of inferior achievement. We do 
not disagree that these factors are relevant, but we cannot 
ignore the overwhelming evidence to the effect that isola­
tion or segregation per se is a substantial factor in pro­
ducing unequal educational opportunity.

The first study of the equality of educational opportunity 
in the Denver Public Schools conducted by the Voorhees

Opinion of District Court of March 21, 1970



85a

Committee recognized this. In its 1964 report to the Board
of Education this Committee stated that

In a “neighborhood” school system one inevitable result 
of concentrations of races and ethnic groups because 
of housing patterns is concentrations of children in the 
schools into the same groups. There is abundant au­
thority to the effect that “de facto” separation in 
schools may result in educational inequalities, and there 
is in Denver wide belief among the racial and ethnic 
minorities that the schools to which their children go 
are in some way unequal. In addition, however, there 
is the fact that there is not available to many children 
(perhaps a majority of the total school population, 
regardless of race or ethnic background) the demo­
cratic experience of education with members of other 
races and groups with which they will have to live and 
compete. The responsibility to eliminate or reduce 
this result where possible and to compensate for it 
where elimination is not possible by the removal of 
prejudice (whether based on color, ethnic or religious 
background, false values, or any other cause) must be 
the responsibility of the school to its pupils. Voorhees 
Committee Report, pp. 6-7.

The Committee also said:
In 1954 the United States Supreme Court stated that 
segregated education is inherently unequal education. 
There was then and is now ample authority for such 
a statement. While the Court in that instance was 
concerned with segregation established by law, the 
Committee is persuaded that the same statement can 
correctly be made where de facto segregation of minor­

Opinion of District Court of March 21, 1970



86a

ity races occurs because of other factors, the most obvi­
ous of which is a pattern of housing restriction. The 
Committee feels that in adhering without obvious devi­
ation to the principle of establishing school boundaries 
without regard to racial or ethnic background, the 
Board and the administration have concurred, perhaps 
inadvertently, in the perpetuation of existing de facto 
segregation and its resultant inequalities in the educa­
tional opportunities offered. Yoorhees Committee Re­
port, pg. A-5.

Opinion of District Court of March 21, 1970

As a result of the Yoorhees Report, the School Board, on 
May 6, 1964, adopted Policy 5100 providing that henceforth 
the school administration would maintain statistical data on 
the racial and ethnic composition of students in the Denver 
Public Schools. In adopting the philosophy of the Yoor­
hees Report the Board said:

The continuation of neighborhood schools has re­
sulted in the concentration of some minority racial 
and ethnic groups in some schools. Reduction of such 
concentration and the establishment of heterogeneous 
or diverse groups in schools is desirable to achieve 
equality of educational opportunity.

In 1966 the School Board again created a committee to 
investigate inequality of educational opportunity due to 
racial concentration in schools (the Berge Committee). The 
Committee’s report is replete with references to the in­
ferior education which results from segregation.

When we consider the evidence in this case in light of 
the statements in Brown v. Board of Education that segre­
gated schools are inherently unequal, we must conclude that 
segregation, regardless of its cause, is a major factor in



87a

producing inferior schools and unequal educational oppor­
tunity.

The equal protection clause of the Fourteenth Amend­
ment prohibits any state from denying to any person the 
equal protection of the laws. Simply stated, a state may not 
treat persons differently without a legitimate reason for 
doing so. In the area of economic regulation the courts 
grant broad leeway to the states in creating classes of 
individuals and treating them differently. All that need 
be shown is a minimal justification in terms of a legitimate 
state interest for the inequality of treatment.

The courts, however, have jealously guarded the rights 
of disadvantaged groups such as the poor or minorities, 
and have held that where state action, even if non-discrimi- 
natory on its face, results in the unequal treatment of the 
poor or a minority group as a class, the action is uncon­
stitutional unless the state provides a substantial justifica­
tion in terms of legitimate state interest. See, e. g., Griffin 
v. Illinois, 351 U.S. 12, 18 n. 11, 76 S.Ct. 585, 100 L.Ed. 891 
(1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 
9 L.Ed.2d 811 (1963).25 This general principle of consti­

26 Under a claim for relief based upon separate-but-unequal 
school facilities, purpose or intent to discriminate is not a neces­
sary factor. Where state action results in unequal treatment of the 
poor or minority groups, it is no defense that the state action was 
not taken with a purpose to injuriously affect only the poor or 
minorities as a class. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 
585,100 L.Ed. 891 (1956). See also Hobson v. Hansen, 269 F.Supp. 
401, 497 (1967), which states:

The complaint that analytically no violation of equal protec­
tion vests unless the inequalities stem from a deliberately dis­
criminatory plan is simply false. Whatever the law was once, 
it is a testament to our maturing concept of equality that, 
with the help of Supreme Court decisions in the last decade, 
we now firmly recognize that the arbitrary quality of thought­
lessness can be as disastrous and unfair to private rights and 
the public interest as the perversity of a willful scheme.

Opinion of District Court of March 21, 1970



88a

tutional law is fully applicable to school segregation cases. 
The present state of the law is that separate educational 
facilities (of the de facto variety) may be maintained, but 
a fundamental and absolute requisite is that these shall be 
equal. Once it is found that these separate facilities are 
unequal in the quality of education provided, there arises 
a substantial probability that a constitutional violation ex­
ists. This probability becomes almost conclusive where 
minority groups are relegated to the inferior schools. As 
Judge Wright stated in Hobson v. Hansen, supra:

Theoretically, therefore, purely irrational inequali­
ties even between two schools in a culturally homoge­
neous, uniformly white suburb would raise a real con­
stitutional question. But in cases not involving Negroes 
or the poor, courts will hesitate to enforce the separate- 
but-equal rule rigorously. * * * But the law is too 
deeply committed to the real, not merely theoretical 
(and present, not deferred) equality of the Negro’s 
educational experience to compromise its diligence * * * 
when cases raise the rights of the Negro poor. 269 
F.Supp. at 497.

As Judge Wright further pointed out in the Hobson 
case, de facto segregation today stands in the same position 
as did de jure segregation prior to Brown v. Board of Edu­
cation. Under the old Plessy doctrine (Plessy v. Ferguson, 
163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)) a school 
board was under no constitutional duty to abandon dual 
school systems created by law so long as all schools were 
equal in terms of the educational opportunity offered. 
Today, a school board is not constitutionally required to 
integrate schools which have become segregated because 
of the effect of racial housing patterns on the neighborhood

Opinion of District Court of March 21, 1970



89a

school system. However, if the school board chooses not 
to take positive steps to alleviate de facto segreg*ation, it 
must at a minimum insure that its schools offer an equal 
educational opportunity.

The evidence in the case at bar establishes, and we do 
find and conclude, that an equal educational opportunity is 
not being provided at the subject segregated schools within 
the District.26 (See page 78, supra, for a list of these 
schools.) The evidence establishes this beyond doubt. Many 
factors contribute to the inferior status of these schools, 
but the predominant one appears to be the enforced isola­
tion imposed in the name of neighborhood schools and 
housing patterns.27 It strikes one as incongruous that the 
community of Denver would tolerate schools which are in­
ferior in quality.

Opinion of District Court, of March 21, 1970

26 This, of course, does not mean that we condemn in any way 
the leadership and educational efforts of the administration and 
faculty of these schools. Principals and teachers alike have put 
forth an outstanding effort to cope with the educational problems 
in their schools. However, until the underlying causes of these 
problems are removed, the work of these individuals can never be 
fully successful.

27 We thus have a situation very similar to that found in Barks­
dale v. Springfield School Committee, 237 P.Supp. 543 (1965), 
vacated, 348 F.2d 261 (1st Cir. 1965). In that case Judge Sweeney 
found that de facto segregation was contributing to inequality of 
educational opportunity at the schools complained of. He then 
granted relief, not upon a theory that the School Board had an 
affirmative duty to remedy racial imbalance, but rather because 
the Constitution requires a School Board to provide equal educa­
tional opportunities for all children within the system.



90a

Opinion of District Court of March 21, 1970 

IV.
Discussion op R emedies

A. The Northeast Denver Schools

Our preliminary injunction decree dealt largely with, the 
Park Hill schools and, in effect, specifically enforced Reso­
lutions 1520, 1524 and 1531, with the exception of that part 
of the resolution having to do with East Denver High 
School and that part having to do with Cole Junior High 
School.

In part I  of this opinion we have determined that the 
plaintiffs are entitled to full relief in accordance with the 
Resolutions and are also entitled to have the East and 
Cole resolutions implemented in the final judgment. Inas­
much as we have concluded that the preliminary injunction 
should be made final, an appropriate form of judgment can 
be prepared to cover this. The preliminary order will re­
main in effect for the remainder of this year, and the 
present judgment will take effect in September 1970.

B. A Program of Improvement
Although we have concluded that there is not de jure 

segregation in the so-called core city schools,27a we have 
found and concluded that there is a denial of equal oppor­
tunity for education in these schools. We have found and 
concluded that the achievement level in these schools is 
markedly lower and dropout rates are high; and that there 
has been a concentration of minority and inexperienced 
teachers.

How to remedy this condition, that is how to extend to 
the plaintiffs equal educational opportunity, poses a seri­

27a That is, the segregated schools referred to in part III above.



91a

ous and difficult problem, and we do not here present any 
cure-all. One obvious answer, of course, is that these 
schools must be renovated as educational institutions. The 
stress here is not on the inferiority of the buildings, and, 
indeed, they are oftentimes older and less attractive. 
Bather, the emphasis is on improving these as educational 
institutions. One obvious equalizing factor would be to 
have faculty members who are as competent as the faculty 
members at Anglo schools.

At the present time, teachers with seniority can select 
the superior schools and they do so. When these transfers 
occur a degrading effect on the school which they leave 
necessarily results. All concerned are reminded that theirs 
is a less desirable school. It may be that the administra­
tion will have to adopt a rule which prohibits these optional 
transfers by faculty members. These schools are entitled 
to at least their fair share of the most competent teachers. 
The administration may have to assign their very best 
teachers even if premium salaries have to be paid in order 
to accomplish this.

It is also clear from the evidence that the remedial or 
special education programs which have been carried on in 
these schools have not resulted in any significant improve­
ment and so other methods are indicated. It does not fill 
the bill to merely apply for a federal grant and reduce 
the teacher-pupil ratio.

Above all, these schools need pride and spirit so that the 
participants, teachers and pupils, will feel that they are 
part of a meaningful effort. Certainly a first step in 
instilling this is to provide them with leadership—dedicated 
personnel plus the tools to carry out programs. Whether 
this objective is possible cannot be determined until a genu­
ine good faith effort is forthcoming. In Superintendent

Opinion of District Court of March 21, 1970



92a

Gilberts and Ms staff the Board has access to experts who 
are capable of formulating such a program. Obviously 
this Court does not have this expertise, but it anticipates 
hearing from experts, including the Board staff.

C. Compulsory Transportation
The evidence in this case shows that neither the plain­

tiffs nor the defendants nor other interested parties are 
in favor of bussing as such. It is, however, conceded to be 
a necessity where integration is ordered, and it would 
appear to be the only way to implement the Resolutions 
(1520,1524 and 1531) and to carry out Part I of this opinion.

In connection with equalizing the educational oppor­
tunity, it is not so clear that compulsory transportation 
is the answer. To be sure, if the children could go to 
school together on a natural basis, it would undoubtedly 
provide the most effective antidote for the inferiority. 
However, setting up an artificial and extensive system of 
bussing which compels cross-movement and which is not 
supported by either side has some tendency to undermine 
the program from the start.

There is a dearth of law in connection with the remedy 
applicable to equalizing the educational opportunity, and 
compulsory integration is not yet at least the prescribed 
remedy. However, it is conceivable that this could become 
the only effective remedy as a matter of law, and it con­
ceivably could become recognized as a matter of constitu­
tional law. Nevertheless, at this writing, the fashioning 
of a remedy is a process of weighing and balancing the 
equities.

From the intervenors and from other sources at the 
trial, the difficulties and vicissitudes of mandatory bussing 
have been presented. One persuasive point arises from the

Opinion of District Court of March 21, 1970



93a

proof of the plaintiffs. Their evidence establishing the 
inferiority of the subject schools is so convincing that it 
raises a serious equitable question about subjecting any 
pupils, minority or majority, to them. It would be im­
posing a sanction on pupils from good schools—a sanction 
for an offense which they did not commit.

D. Voluntary Transfer Policy
We have a single suggestion apart from improvement 

and that is a system of genuine voluntary transfer out of 
inferior schools to good schools. This would be a matter 
of right without the need for securing a reciprocal trans­
fer from an Anglo school to a minority school. Persons 
desiring this immediate improvement of their educational 
opportunity could get it, and the District would, in accord­
ance with its present policy based on distance, be required 
to furnish transportation. Moreover, the Board would be 
required to furnish space for these students. On the other 
hand, pupils attending the better schools would not be 
compelled to transfer to the core city schools.28 They could 
do so if they wished.

Our suggestion recognizes that there are members of the 
minority groups who are not enthusiastic about compulsory 
bussing. These parents have the same apprehensions as 
the majority parents about sending their children into un­
known conditions, and perhaps into hostile atmospheres. 
At the same time, in many instances, they have the same 
hopes and aspirations for their children as do members of 
the majority and are willing to make the sacrifice in order 
to improve the educational opportunity for them.

Opinion of District Court of March, 21, 1970

28 This would not, of course, apply to students subject to part I 
of this opinion and the integration Resolutions because actual inte-



94a

Arguably, at least, this method satisfies the Constitution 
in that it recognizes the right of every student and makes 
that right available to him without forcing it on him. Com­
ments of the litigants on this will be considered at a fur­
ther hearing.

E. Voluntary Open Enrollment
As to the voluntary open enrollment policy of the School 

Board, certainly they should be free to pursue and develop 
this to the nth degree. Their position at the trial was that 
this would ultimately produce integration. One questions 
whether it would, but if it can be operated successfully, 
the Board should be encouraged to carry it out. It should 
be noted, however, that this is neither “voluntary” nor is 
it “open” because it requires that there be spaces avail­
able in the transferee school or that there be an exchange 
program. It seems clear to us that there would be few 
participants in an exchange program with the core city 
schools. It seems highly unlikely that students would elect 
to go to these schools from white neighborhoods and so it 
is questionable whether any integration would be achieved 
in a substantial way from this program. On the other 
hand, the method selected above has no such “catch” in it.

It is contemplated that any decree which is finally pro­
mulgated here will not be effective until next fall. On the 
other hand, the preliminary injunction heretofore entered 
would continue for the remainder of this school year until 
next September when the final judgment would be effective. 
This opinion does not purport to be a judgment for the 
purpose of appeal. Final judgment will be entered after 
a meeting with counsel which hopefully can be carried out 
within the next 30 days.

Opinion of District Court of March 21, 1970



Opinion of District Court of March, 21, 1970

Appendix I : Achievement Data 
Elementary Schools

Third Grade Fifth Grade
Average Average
Median Median

School Achievement School Achievement
Barrett 2.81 Barrett 4.73
Boulevard 2.80 Boulevard 4.33
Bryant-W ebster 3.16 Bryan t-Webster 4.43
Columbine 2.93 Columbine 4.27
Crofton 3.10 Crofton 4.22
Ebert 2.71 Ebert 4.17
Elmwood 3.42 Elmwood 4.62
Fairmont 2.85 Fairmont 4.10
Fairview 2.96 Fairview 4.25
Garden Place 2.61 Garden Place 4.16
Gilpin 2.68 Gilpin 4.46
Greenlee 2.93 Greenlee 4.16
Hallett 3.06 Hallett 4.24
Harrington 2.55 Harrington 4.02
Mitchell 2.71 Mitchell 3.90
Smith 3.06 Smith 4.74
Stedman 3.13 Stedman 4.64
Whittier 2.76 Whittier 4.26
Wyatt 3.43 Wyatt 4.06
Wyman 3,05 Wyman 4.47

J unior H igh Schools Senior H igh Schools

Average Average
Median Median

Percentile Percentile
School Score School Score
Baker 31.1 East 54
Byers 63.0 George Washington 76
Cole 25.4 John F. Kennedy 73
Gove 63.2 Abraham Lincoln 59
Grant 55.7 Manual 30
Hill 77.4 North 53
Horace Mann 32.3 South 66
John F. Kennedy 71.4 Thomas Jefferson 72
Kepner 49.0 West 35
Kunsmiller 62.2
Lake 48.7
Merrill 74.1
Morey 30.3
Rishel 57.2
Skinner 55.2
Smiley 42.9
Thomas Jefferson 75.6



96a

Opinion of District Court of March 21, 1970

Appendix I I : Teacher E xperience 
Elementary Schools

(Plaintiffs’ 20 Selected Target Schools)
School None Probation 10 or more years
Barrett 21.1 31.6 21.1
Boulevard 16.7 50.0 27.8
Bryant-Webster 13.8 34.5 44.8
Columbine 27.3 50.0 11.4
Crofton 21.4 42.9 28.6
Ebert 21.1 42.1 26.3
Elmwood 39.1 39.1 17.4
Fairmont 25.0 78.6 10.7
Fairview 10.3 33.3 25.6
Garden Place 18.4 36.8 15.8
Gilpin 25.0 41.7 25.0
Greenlee 12.5 40.0 25.0
Hallett 25.0 46.4 28.6
Harrington 30.4 73.9 0.0
Mitchell 26.0 44.0 16.0
Smith 26.4 49.1 7.5
Stedman 23.7 39.5 13.2
Whittier 27.3 56.8 9.1
Wyatt 13.6 27.3 27.3
Wyman 22.2 50.0 16.7

Total Average 22.5 45.4 18.7
(Plaintiffs’ 20 Selected Anglo Schools)

School None Probation 10 or more years
Ash Grove 17.9 35.7 21.4
Bradley 2.9 11.8 58.8
Bromwell 18.2 18.2 45.5
Carson 16.0 40.0 48.0
Cory 0.0 18.2 40.9
Doull 14.7 20.6 58.8
Ellis 9.1 18.2 42.4
Ellsworth 25.0 62.5 25.0
Fallis 7.7 15.4 46.2
Gust 21.9 40.6 31.3
Knight 4.3 30.4 56.5
McMeen 3.0 24.2 51.5
Montclair 0.0 11.1 48.1
Palmer 6.3 12.5 75.0
Pitts 11.8 29.4 58.8
Sabin 8.0 20.0 38.0
Slavens 13.0 30.4 52.2
Traylor 10.3 20.7 58.6
University Park 14.3 37.1 48.6
Washington Park 0.0 36.8 36.8

Total Average 9.8 25.6 47.1



97a

Opinion of District Court of March 21, 1970

Appendix II: Teacher Experience (continued) 
Ate J unior H igh Schools

School None Probation 10 or more years
Baker 32.1 60.7 10.7
Byers 14.0 43.9 26.3
Cole 39.6 65.9 14.3
Gove 31.0 45.2 19.0
Grant 19.5 34.1 24.4
Hill 14.5 33.7 36.1
Kepner 14.5 50.7 17.4
Kunsmiller 6.0 32.5 32.5
Lake 10.6 40.9 31.8
Mann 20.3 55.9 16.9
Merrill 16.2 35.1 33.8
Morey 27.8 53.7 13.0
Rishel 16.7 36.7 21.7
Skinner 15.0 38.3 23.3
Smiley 35.7 63.3 7.1

Total Average 21.1 46.7 22.0
Target Schools

School None Probation 10 or more years
Baker 32.1 60.7 10.7
Cole 39.6 65.9 14.3
Morey 27.8 53.7 13.0
Smiley 35.7 63.3 7.1

Total Average 34.8 61.9 11.0
Anglo Schools

School None Probation 10 or more years
Hill 14.5 33.7 36.1
Merrill 16.2 35.1 33.8

Total Average 15.3 34.4 35.0
All Senior H igh Schools

School None Probation 10 or more years
Lincoln 8.3 17.3 59.4
East 17.2 34.4 36.7
George Washington 8.9 17.0 54.1
Kennedy 6.6 15.4 48.5
Manual 17.1 37.8 32.4
North 8.2 29.1 41.8
South 8.2 16.4 55.7
Thomas Jefferson 6.8 22.2 50.6
West 14.5 30.0 40.0

Total Average 10.3 24.0 47.1



98a

Opinion of District Court of March 21, 1970

Appendix II: Teacher Experience (continued)
Target Schools

School None Probation 10 or more years
East 17.2 34.4 36.7
Manual 17.1 37.8 32.4
West 14.5 30.0 40.0

Total Average 16.3 34.1 36.4
Anglo Schools

School None Probation 10 or more years
George Washington 8.9 17.0 54.1
Kennedy 6.6 15.4 48.5
Thomas Jefferson 6.8 22.2 50.6

Total Average 7.4 18.5 51.0

Appendix I I I : P upil Dropout Bates

Junior High Schools Projected Annu
Baker 12.9 4.5
Byers 3.8 1.3
Cole 7.0 2.4
Gove 1.9 .6
Grant 3.0 1.0
Hill .7 .3
Horace Mann 6.7 2.6
Kepner 3.7 1.5
Kunsmiller 1.7 .6
Lake 6.3 2.1
Merrill .8 .3
Morey 15.7 5.1
Rishel 4.1 1.4
Skinner 2.1 .8
Smiley 6.1 2.1
John F. Kennedy .3 .2
Thomas Jefferson .6 .2
Senior High Schools Projected Annui
Abraham Lincoln 38,1 14.7
East 46.8 18.8
George Washington 10.8 3.6
Manual 57.0 24.4
North 51.8 21.9
South 39.6 15.3
West 46.9 19.5
John F. Kennedy 13.0 1.9
Thomas Jefferson 9.9 1.7



99a

UNITED STATES DISTRICT COURT 
D. Colorado 

Civ. A. No. C-1499 
May 21, 1970

Opinion o f District Court o f May 2 1 , 1970

W ilfred K eyes, individually and on behalf of Christ! Keyes,
a minor, et al.,

Plaintiffs,
v.

School District Number One, Denver, Colorado, the Board 
of Education, School District Number One, Denver, 
Colorado, William C. Berge, individually and as Presi­
dent, Board of Education, School District Number One, 
Denver, Colorado, Stephen J. Knight, Jr., individually 
and as Vice President, Board of Education, School Dis­
trict Number One, Denver, Colorado, James C. Perrill, 
Frank K. Southworth, John H. Amesse, James D. Voor- 
hees, Jr., and Rachel B. Noel, individually and as mem­
bers, Board of Education, School District Number One, 
Denver, Colorado, Robert D. Gilberts, individually and 
as Superintendent of Schools, School District Number 
One, Denver, Colorado,

Defendants.

Decision Re P lan or R emedy 

W illiam E. Doyle, District Judge.
It is to be recalled that this suit, which has been previ­

ously before the Court, was instituted as a class action by



100a

Negro and Hispano public school students and their parents. 
Plaintiffs complained that there was de jure segregation 
in many of the schools in School District Number One, 
Denver, Colorado, and that an unequal educational oppor­
tunity was being provided in the segregated schools within 
the District. On March 21, 1970, after approximately three 
weeks of trial, this Court handed down a memorandum 
opinion and order finding that certain schools, elementary, 
junior high and a high school within an area of Denver 
known as Park Hill, and also some 15 schools within the core 
city, were segregated. It was also concluded that our tempo­
rary injunction entered in August 1969, finding a condition 
of de jure segregation in certain schools resulting from the 
Denver Board of Education’s action rescinding Resolutions 
1520, 1524 and 1531, which had been designed to have an 
integrating effect on Park Hill schools, must be made per­
manent. We ordered full implementation of these Resolu­
tions. D.C., 313 F. Supp. 61.

A further determination was that certain schools within 
the core city were segregated as the result of housing pat­
terns and the neighborhood school system; that this consti­
tuted de facto segregation and was not unconstitutional per 
se. A corollary finding and conclusion was that the segre­
gated core city schools in question were providing an un­
equal education opportunity to minority groups as evi­
denced by low achievement and morale. The causes of this 
inferiority were held to be the segregated condition, to­
gether with concentration of minority teachers, low teacher 
experience and high teacher turnover in each of the schools. 
We stated that:

The present state of the law is that separate educa­
tional facilities (of the de facto variety) may be main­
tained, but a fundamental and absolute requisite is that

Opinion of District Court of May 21, 1970



101a

these shall be equal. Once it is found that these sepa- 
arate facilities are unequal in the quality of education 
provided, there arises a substantial probability that a 
constitutional violation exists. This probability be­
comes almost conclusive where minority groups are 
relegated to the inferior schools. 313 F.Supp. at 83.

We thus concluded that the School District had violated 
the equal protection clause of the Fourteenth Amendment 
by maintaining and operating schools which deprived the 
recipients of an equal educational opportunity. Both plain­
tiffs and defendants were asked to submit plans to remedy 
the inequality found to exist.

The cause is then presently before us for the purpose of 
fashioning a remedy which hopefully will establish equality 
of educational opportunity in the Court designated segre­
gated schools.

Both plaintiffs and defendants have submitted lengthy 
plans for improving educational opportunity and many of 
the foremost authorities on this subject, both with respect to 
the Denver area and nationwide, have been called upon to 
testify.

I .

Description op P lans

Plaintiffs’ proposed plan involves a three-step process 
for raising achievement and equalizing educational oppor­
tunity. The first step is desegregation, or the elimination of 
racial isolation of minority students through cross-trans­
portation of pupils. Plaintiffs have concentrated on this 
phase of the program and the plans for desegregation are, 
for the most part, the product of computer analysis. The 
second phase involves integration, which the plaintiffs define

Opinion of District Court of May 21, 1970



102a

as the educational process of promoting mutual respect and 
understanding among students, teachers and the commun­
ity. The final portion of the plaintiffs’ plan suggests a sys­
tem of compensatory education programs, carried out in an 
integrated environment, designed to equalize achievement.

At the outset we note that plaintiffs urge that the Court 
should reconsider certain schools which plaintiffs consider 
“target” schools, but which the Court found not to be 
segregated inferior schools. Plaintiffs call attention to the 
fact that two schools, namely Elyria and Smedley, are not 
only inferior in terms of achievement, but also meet the 
guideline set by the Court that the school contain at least 
70 to 75 percent Negro or Hispano students. Furthermore, 
plaintiffs ask us to reconsider at least nine other schools 
which have a combined minority population of over 70 
percent.1 Failure to include Elyria and Smedley Schools 
was due to oversight. These must now be included in a 
plan for relief. We have concluded that none of the plans 
are wholly suitable and that a carefully tailored plan con­
sisting of parts of the submitted ideas should be adopted. 
Nevertheless, a brief description of the plaintiffs’ and de­
fendants’ proposals will furnish some understanding of 
the problem and of this order.

Plaintiffs propose four alternative plans for desegrega­
tion of elementary schools. The first of these desegregates 
the Court designated elementary schools by a system of 
cross-bussing. The total number of schools involved would 
be 29; the total number of students to be transported 
would be 8,380; the average miles traveled per student one­

Opinion of District Court of May 21, 1970

1 We concluded in our March 21 opinion that it was not ap­
propriate to place Negroes and Hispanos in one category to arrive 
at a minority population of over 70 percent. 313 F.Supp at 69



103a

way would be 6.4; the minimum Anglo enrollment at any 
school designated by the Court would total 54 percent.

The second proposed alternative plan calls for enrolling 
only pupils in grades 4-6 in the 12 Court designated ele­
mentary schools. Each of these schools would be paired 
with one or more Anglo schools which would be used only 
for grades K-3. This plan would involve 31 schools; 11,109 
students would be transported; the average number of 
miles traveled per student one-way would be 6.3; minimum 
Anglo enrollment at the Court designated schools would be 
51 percent.

Plan three is similar to plan one except that it would 
include all of plaintiffs’ target elementary schools rather 
than just the Court designated elementary schools. It 
would, of course, require a much greater transportation 
effort involving as it does numerous schools which the 
Court has not included.

Plan four is similar to plan two, except that all of plain­
tiffs’ target schools are provided with relief.

Alternative plans are submitted by plaintiffs for deseg­
regating junior high schools. The first of these would de­
segregate Cole Junior High School by reassigning to Cole 
some 1,038 students already being bussed to Thomas Jef­
ferson and John F. Kennedy. Also, students now being 
bussed to Cole would be bussed instead to Thomas Jeffer­
son and John F. Kennedy. This plan would increase Anglo 
enrollment at Cole to 66 percent. The second alternative 
plan would desegregate not only Cole, but also Horace 
Mann, Lake, Morey and Baker Junior High Schools by a 
system of cross-bussing similar to that involved in the first 
alternative plan.

Plaintiffs also propose alternative programs for equaliz­
ing educational opportunity at Manual High School. First,

Opinion of District Court of May 21, 1970



104a

they recommend alteration of the school attendance bound­
aries of Manual, East and South, to create long narrow 
north-south corridors for each of the above schools. This 
would result in many Anglo students from south Denver 
attending Manual. As a second alternative, the plaintiffs 
suggest that Manual be made an open school which could 
be attended by any student in the District and which would 
specialize in vocational and pre-professional training. This 
plan is essentially the same as that proposed by the Board 
with respect to Manual.

Finally, plaintiffs have suggested several programs 
which would aid in creating cultural understanding and 
respect as well as programs for equalizing educational 
opportunity through compensatory education. These in­
clude faculty and staff inservice training and orientation, 
programs for community involvement, use of paraprofes- 
sionals, tutorial systems, individualized instruction, in­
creased pre-school training and others which are very 
similar to the School Board’s suggestions, except that 
under plaintiffs’ plan, desegregation constitutes an essen­
tial first step.

The defendants’ program for equalizing educational op­
portunity in the Court designated schools is basically one 
of compensatory education, with little emphasis on deseg­
regation. Defendants offer some opportunity for mixing 
of the races, in that pupils at the fifteen Court designated 
schools could transfer to a school of their choice on a space 
guaranteed basis with transportation provided by the Dis­
trict, if the transfer will improve racial balance. This is 
similar to our suggestion in the March 21, 1970 opinion 
and it differs from the earlier School Board VOE program 
since the availability of space at a receiving school is not 
a precondition to transfer.

Opinion of District Court of May 21, 1970



105a

The remaining of defendants’ offerings deal with vari­
ous forms of compensatory education. Its first section out­
lines proposals for staffing. There would be encourage­
ment and incentives to induce good teachers to work at the 
core city schools by extension of the school year and in­
creased teacher compensation. An effort would be made 
to integrate teaching and administrative staffs. Teacher 
aides and paraprofessionals would be employed so that 
teacher time could be utilized more efficiently, there would 
be human relations training for all school district employ­
ees, and teachers would receive instruction in preparation 
for assignment to target schools.

Educational complexes, as described in the plan, are cur­
rently in preparation. A complex would include a basic 
neighborhood school with special programs at other schools 
in the cluster. Subjects, activities and services offered at 
the complex would be oriented to the requirements of the 
community in which the complex is located.

Defendants’ plan also recognizes the importance of the 
early development of a child, and the need to reach minor­
ity children at an early stage. Programs such as Head 
Start now being used would continue. Those programs 
currently in use deal with children from three years old to 
the first grade in certain areas of the city, and a proposed 
National Follow Through program will work with children 
through the third grade.

Defendants’ plan also describes special programs cur­
rently in progress or proposed for Cole Junior High School 
and Manual High School. The efforts at Cole include the 
use of laboratory approaches in all academic areas; use of 
inservice training; use of tutors and student aides; in­
creased counseling efforts; a work-study program; and an 
extension center and a “crisis room” to be used with stu­

Opinion of District Court of May 21, 1970



106a

dents who do not adjust well to a regular classroom setting 
and are potential dropouts or subjects for suspension from 
school. The programs at Manual include extensive voca­
tional skills and pre-professional courses and advanced 
placement opportunities.

At present, funds are available under Colorado Senate 
Bill 174 for children whose reading skills are two or more 
years below their grade level. Current S.B. 174 financed 
programs are in effect at Fairview Elementary School, and 
Baker and Cole Junior High Schools. State appropria­
tions are expected to permit the continuation of these 
programs.

Finally, defendants list a number of innovative practices. 
These would emphasize the active, rather than passive ele­
ments of learning, recognizing that pupils will vary in 
their rate of learning based on their ability, background 
and other factors; efforts would be made to avoid practices 
which might degrade the child, such as underestimating 
his ability or denigrating his background or family (no 
matter how subtly or unconsciously done); and an effort 
would be made to supply an attractive climate for learning 
—attractive buildings and classrooms, good interpersonal 
relationships between parents, pupils and teachers, excur­
sions into places of greater interest and so forth are all 
contemplated in this type of program.

II.
T he T estimony

The crucial factual issue considered was whether com­
pensatory education alone in a segregated setting is capa­
ble of bringing about the necessary equalizing effects or 
whether desegregation and integration are essential to im­

Opinion of District Court of May 21, 1970



107a

proving the schools in question and providing equality. 
The evidence of both parties has been directed to this 
question.

Plaintiffs’ evidence focused directly on the proposition 
that desegregation is essential in improving the quality of 
educational opportunity in the Court designated schools 
and that compensatory programs of the type proposed by 
the defendants cannot work in a segregated setting.

Dr. James Coleman, professor of social relations at 
Johns Hopkins University and author of the Coleman Re­
port on equality of educational opportunity, testified that 
isolation of children from low socioeconomic families cre­
ates an atmosphere which inevitably results in an inferior 
educational opportunity. Dr. Coleman stated that a child’s 
ability to learn is significantly affected by the educational 
stimulation provided by his family. Since Negro and His- 
pano children from low socioeconomic families are typically 
not provided with this stimulation, a compensating stimu­
lation must be provided by the peer group in the school. 
Where all children in the school come from families with 
similar low socioeconomic status, the negative effect pro­
duced by family background is reinforced rather than 
alleviated. Dr. Coleman testified that although a racially 
isolated school is not inferior per se, it will inevitably pro­
vide an unequal educational opportunity where the racial 
or ethnic isolation involves a homogeneous student body 
all from uneducated and deprived backgrounds.

Dr. Neil Sullivan, who is now Commissioner of the Massa­
chusetts State Board of Education and who installed the 
Berkeley desegregation plan in Berkeley, California, testi­
fied that in his opinion it was racial segregation itself, 
rather than isolation of children from low socioeconomic- 
families, which caused the inferiority of educational op­

Opinion of District Court of May 21, 1970



108a

portunity. Dr. Sullivan stated that Berkeley had attempted 
to improve racially segregated schools by massive programs 
of compensatory education including lowering the teacher- 
pupil ratio, improving equipment and materials, and insti­
tuting cultural enrichment programs. These programs had 
little effect on student achievement. It was Dr. Sullivan’s 
expert opinion that any effort at compensatory education 
must be correlated with desegregation if it is to achieve 
positive results. He also stated that a program of de­
segregation similar to that used in Berkeley required two 
years of preparation and planning.

Dr. Sullivan’s testimony was reinforced by the testimony 
of Dr. Robert O’Reilly. Dr. O’Reilly, the assistant director 
of research and evaluation for the New York State Depart­
ment of Education, has made the most extensive study of 
compensatory education programs on a national scale cur­
rently available. He explained that most compensatory 
programs include such items as lowering teacher-pupil 
ratio, use of paraprofessionals, inservice teacher and staff 
training programs, individualized tutoring and cultural en­
richment courses. He concluded from this study that com­
pensatory education carried on in a segregated atmosphere 
had little or no effect on raising achievement. Dr. Sullivan 
conceded desegregation in and of itself is not a cure-all, 
but is an essential step in improving educational oppor­
tunity and that compensatory programs are important and 
probably useful, but only if conducted in a desegregated 
setting.

The main witness for the defendants was Dr. Robert Gil­
berts, Superintendent of Schools for School District Num­
ber One. Dr. Gilberts explained the defendants’ proposed 
plan and offered a critique of the plaintiffs’ suggested pro­
gram. He stated that low achievement among children in

Opinion of District Court of May 21, 1970



109a

the Court designated schools was the result of a number 
of factors, including home situation, lack of discipline, ab­
sence of stimulation by parents, and verbal deficiencies re­
sulting from the families’ limited vocabulary. Although 
Dr. Gilberts was the developer of Resolutions 1520, 1524 
and 1531, designed to desegregate schools in Park Hill, he 
indicated that this was merely a pilot project. He main­
tained that there is no affirmative evidence that desegre­
gation would aid in providing an equal educational oppor­
tunity for minority children. Furthermore, Dr. Gilberts 
expressed doubt that desegregation could be successful 
without broad community support.2

The defendants’ plan, as explained by Dr. Gilberts, is 
designed to reconstruct the educational climate by such 
programs as differential staffing, improved inservice train­
ing for teachers and staff, special innovative programs of 
vocational and preprofessional training at Manual High 
School and to some extent at Cole Junior High School, and 
increasing the number of experienced teachers at the Court 
designated schools. A program similar to the present Vol­
untary Open Enrollment would be instituted, but with a 
guaranteed open space provision so that any student in 
the district might transfer to another school with trans­
portation provided by the District if the transfer would 
improve the racial balance of both receiving and sending 
schools. Within the next two years a portion of the “com­
plex system” will be initiated in Denver. Dr. Gilberts ad­
mitted, however, that only the new VOE program was 
specifically designed to provide some measure of desegre­
gation. For the most part the defendants’ programs are 
to be carried out in a substantially segregated setting.

2 We agree that community support is essential, but this, of 
course, requires a community education program—indeed a cam­
paign.

Opinion of District Court of May 21, 1970



110a

Defendants also called Messrs. Ward, Morrison and Reh- 
mer, the Principals of Manual High School, Cole Junior 
High School and Bryant-Webster Elementary School, re­
spectively.

Mr. Ward testified that he had initiated several innova­
tive programs at Manual since becoming Principal. These 
included work-study vocational training in areas such as 
building trades, metal work, power and transportation and 
home economics. He also testified that pre-professional 
studies were instituted. These are designed to familiarize 
pupils with occupational fields such as law, medicine, edu­
cation and engineering. Although there was no evidence 
that these innovative programs improved the academic 
achievement of Manual students, Mr. Ward stated that 
they had intensified interest among students in remaining 
in school.

Mr. Morrison has also begun certain innovative programs 
at Cole Junior High School. These include the use of 
laboratory approaches in all academic areas, tutors and 
student aides, work-study programs and the “crisis room” 
and extension center. He testified that these approaches 
have succeeded in restoring student and community confi­
dence in the school. The result of these programs on aca­
demic achievement has not yet been determined. It does 
appear though that Cole Junior High is now being used 
as a specialty school.

Mr. Rehmer has instituted new programs at Bryant- 
Webster which are basically compensatory in nature, and 
have achieved some success in reviving student interest. 
This is a predominantly Spanish elementary school in 
which compensatory reading and some Spanish oriented 
programs have been stressed.

Finally, these Principals agreed that their programs 
could be carried out in an integrated setting and that

Opinion of District Court of May 21, 1970



111a

desegregation of their schools would substantially improve 
the educational opportunity for their students.

III.
I ssues of L aw

Before discussing our determinations of fact we must 
mention that there are present herein two novel questions 
of law.

The first of these is discussed in the memorandum opin­
ion and order of March 21, 1970. This is the question 
whether a condition of de facto segregation is to be rem­
edied in the same manner as a condition of de jure segre­
gation. We found at the trial that the schools in question 
became segregated as a result of neighborhood housing- 
patterns—at least that this was the substantial factor in 
producing the result. It was not caused by positive law 
or as a result of official action. In the present state of the 
law, particularly in this the Tenth Circuit, we were of the 
opinion that desegregation could not be decreed in these 
circumstances. Undoubtedly this question will receive at­
tention in higher courts at the behest of one or both of the 
parties and we do not pursue it.

The second question is one of both law and fact, but is 
predominantly to be determined from the evidence. It is 
whether in a setting of grossly inferior minority schools, 
compensatory education—improvement of the minority 
schools, together with a free transfer policy such as that 
suggested in the March 21, 1970 opinion—constitutes a 
constitutionally acceptable remedy or whether in order to 
in truth improve the schools and to thus satisfy the re­
quirements of the Constitution, it is necessary to prescribe 
and implement also a program of desegregation and inte­

Opinion of District Court of May 21, 1970



112a

gration. We have concluded after hearing the evidence 
that the only feasible and constitutionally acceptable pro­
gram—the only program which furnishes anything ap­
proaching substantial equality—is a system of desegrega­
tion and integration which provides compensatory educa­
tion in an integrated environment. We have, however, 
delayed its being carried into effect for one year (for part 
of the program) and for two years (for the remainder). 
We have directed the adoption of an interim program such 
as that suggested in the March 21, 1970 opinion.

IV.
F indings and Guidelines

1. The overwhelming evidence in this case supports the 
finding and determination which we now make that im­
provement in the quality of education in the minority school 
can only be brought about by a program of desegregation 
and integration. This is the positive conclusion of Doctors 
Coleman, Sullivan and O’Reilly, all of whom are authorities 
in the field. Their opinions are supported by extensive, 
comprehensive, in depth studies and, in some instances, 
actual experience in the field.

2. The evidence clearly establishes that the segregated 
setting stifles and frustrates the learning process. One of 
the expert witnesses made the matter clear when he said 
that the isolation of any group develops a homogeneous 
mass which brings out the worst in the individual members 
and establishes a low standard of achievement. When, in 
addition, the group is from a socioeconomic group which 
is deficient, the bad results are intensified. Add to this 
the minority factor with the attendant lack of pride and

Opinion of District Court of May 2 1 ,1970



113a

hope, and the task of raising achievement levels becomes 
insurmountable. The minority citizens are products, in 
many instances, of parents who received inferior educa­
tions and hence the home environment which is looked to 
for many fundamental sources of learning and knowledge 
yields virtually no educational value. Thus, the only hope 
for raising the level of these students and for providing 
them the equal education which the Constitution guarantees 
is to bring them into contact with classroom associates who 
can contribute to the learning process; it is now clear that 
the quality and effectiveness of the education process is 
dependent on the presence within the classroom of knowl­
edgeable fellow students.

3. To seek to carry out a compensatory education pro­
gram within minority schools without simultaneously de­
veloping a program of desegregation and integration has 
been unsuccessful. Experience has shown that money spent 
in these programs has failed to produce results and has been, 
therefore, wasted. The ideal approach, and that which of­
fers maximum promise of success, is a program of desegre­
gation and integration coupled with compensatory education. 
Desegregation in and of itself cannot achieve the objective 
of improving the quality of the education in schools. It 
must be carried out in an atmosphere of comprehensive 
education and preparation of teachers, pupils, parents and 
the community. It also must be coupled with an intense 
and massive compensatory education program for the stu­
dents if it is to be successful.

4. A system of free transfer to designated Anglo or 
white schools of minority groups furnishes a minimal, but 
at the same time an insufficient, fulfillment of the consti­

Opinion of District Court of May 21, 1970



114a

tutional rights of the persons involved. True, such a method 
furnishes some relief to the individuals who choose to ex­
ercise it, but here again it promises little unless it is ac­
companied by a careful, painstaking program of compensa­
tory education because here, without the support, the 
individual is alone in an environment which is much more 
difficult and competitive than either the segregated or inte­
grated one. It should be used then as an interim measure. 
I t will serve to minimize the deprivation during the period 
of planning and preparation for a permanent system.

5. As a prelude to a program of integration, the Court 
designated minority schools must be drastically improved. 
The inequity implicit in sending majority students to a 
grossly inferior school was noted in our March 21, 1970 
opinion. Substantial correction of these conditions is, there­
fore, a necessity.

V.
P bovisions or the P lan

In our opinion of March 21, 1970, we recognized the un­
derlying constitutional basis for this decision, which is that 
a state or its subdivision may not constitutionally maintain 
any program which treats members of minority groups 
unequally as compared with other groups. It makes no 
difference that the system may appear to be equal on its 
face, if its operation in fact results in unequal treatment. 
Further, when a court finds that such inequality of treat­
ment exists, it is constitutionally bound to provide a remedy 
which will wipe out the inequality “root and branch.”

Having found, in accordance with the overwhelming 
weight of the evidence, that the racial isolation of Negro 
and Hispano children which exists in the fifteen schools 
designated in this Court’s opinion of March 21, 1970, to­

Opinion of District Court of May 21, 1970



115 a

gether with Elyria and Smedley Elementary Schools, is 
the primary factor producing inequality of educational 
opportunity at those schools and that this inequality can 
be remedied only through a combined program of desegre­
gation, together with a massive program of compensatory 
education, and having further concluded that neither the 
plans submitted by plaintiffs nor those of defendants are 
wholly satisfactory, we, therefore, now delineate the guide­
lines of the plan which, based on the evidence and the law, 
satisfies the Constitution and, at the same time, holds some 
promise of acceptance and success.

A. Summary

The plan calls for desegregation of the Court designated 
elementary schools (grades 1 through 6) including Smedley 
and Elyria Schools. Part of this is to be accomplished on or 
before September 1, 1971, and the remainder is to be car­
ried out not later than September 1, 1972. The detailed 
plan, including the exchanges which will be necessary, is 
not adopted now because it is believed that further study 
must be made. Baker Junior High School is also to be 
desegregated. A substantial part of the desegregation pro­
gram must be completed on or before September 1, 1971, 
and complete desegregation and integration is to be ac­
complished on or before September 1, 1972.

Cole Junior High is also to be desegregated and inte­
grated on or before the same dates applicable to Baker. 
This can be accomplished by making Cole a specialty school 
if the Board of Education determines that this is more 
feasible.

Manual High School is to become a specialized City high 
school which will offer pre-professional and particular col­
lege preparation courses. It will also offer, in accordance

Opinion of District Court of May 21, 1970



116a

with the Board’s plan, a variety of work-study programs 
designed to develop talent in arts and trades.

The compensatory education program and the free trans­
fer programs of the Board are also part of the plan.

B. Elementary Schools
At least 50' percent of the Court designated elementary 

schools, grades 1 through 6, including Elyria and Smedley 
Elementary Schools, must he desegregated by fall of 1971.

Complete desegregation of all Court, designated ele­
mentary schools, grades 1 through 6 must be accomplished 
by the beginning of school in the fall of 1972. We consider 
complete desegregation fulfilling the constitutional require­
ment to be accomplished when each of the above schools 
has an Anglo composition in excess of 50 percent. Although 
it is probably not constitutionally required, the desirability 
of having the minority student population in each of these 
schools apportioned equally between Negro and Hispano 
children is apparent.

Because the plaintiffs and the School District have the 
expertise necessary for devising a system of school redis­
tricting and transportation to achieve the result set forth 
above, we leave these details to them. But we stress that 
the details of the scheme must be carefully examined and 
checked, having in mind that the program is a human one. 
While the computers can be useful in such an effort, their 
results must be checked with care to prevent unnecessary 
burden to the persons involved. The final details will be 
subject to review by the Court. We have, of course, been 
reluctant to decree mandatory transportation, and it should 
be avoided to the extent possible.

Opinion of District Court of May 21, 1970



117a

C. Junior High Schools
Substantial progress must be made in desegregating 

Baker Junior High School by fall of 1971, Complete de­
segregation of Baker Junior High School along the lines 
set forth above for elementary schools must be effectuated 
by the beginning of the school year in the fall of 1972.

Cole Junior High School. The Board is directed to adopt 
one of two alternative plans. First, the Board of Education 
may desegregate Cole. If this alternative is adopted, sub­
stantial progress must be made in desegregating Cole by 
fall of 1971, with complete desegregation of Cole Junior 
High by the beginning of the school year in the fall of 1972. 
The second alternative is to establish Cole by fall of 1971 
as an open school for special education and other special 
programs now in effect or which the School Board may wish 
to put into effect in the future. Under this second alterna­
tive, those students who would have attended Cole in the 
1971-72 school year, but who do not wish to participate in 
the special programs offered at Cole, may transfer with a 
guarantee of space to another junior high school. It should 
be open to students from other parts of the City in further­
ance of the special programs. A basic assumption is that 
the desegregation and integration policies here enunciated 
will be accomplished regardless of which scheme is adopted 
for Cole.

D. Manual High School

We approve and order implementation of the plans set 
forth by the defendants and plaintiffs for establishing Man­
ual as an open school for the continuation and expansion of 
the vocational and pre-professional training programs which 
have been instituted by the Principal, the faculty and staff.

Opinion of District Court of May 21, 1970



118a

If this program develops and transforms Manual to an 
outstanding institution capable of attracting and accom­
modating students from the entire City, an integration pro­
gram would be superfluous.

E. Preparation
Between now and the beginning of school in fall 1971, 

and continuing through fall of 1972, an intensive program of 
education must he carried out within the community and 
the school system in preparation for desegregation and 
integration. This should include at least a program for 
orienting teachers in the field of minority cultures and prob­
lems and how to effectively deal with minority children in 
an integrated environment. A similar program should be 
undertaken for staff and administrators. It will also be 
necessary to educate the community as to the educational 
benefits and values, not only for the children hut also for 
the community, to be derived from desegregation and 
integration.

F. Free Transfer
Between now and the fall of 1971, as an interim measure 

only, we approve the Board of Education’s program for 
VOE with a guaranteed space provision, and it shall he so 
implemented with respect to all Court designated schools 
including Elyria and Smedley Elementary Schools.

G-. Compensatory Education
We approve of the Board’s plans for compensatory edu­

cation programs for minority children. At a minimum these 
programs should include:

1. Integration of teachers and administrative staff;

Opinion of District Court of May 21, 1970



119a

2. Encouragement and incentive to place skilled and 
experienced teachers and administrators in the core 
city schools;

3. Use of teacher aides and paraprof essionals;
4. Human relations training for all School District 

employees;
5. Inservice training on both district-wide and indi­

vidual school bases;
6. Extended school years;
7. Programs under Senate Bill 174;
8. Early childhood programs such as Head Start and 

Follow Through;
9. Classes in Negro and Hispano culture and history; 

and
10. Spanish language training.

All of the above programs, including several others, are 
now included in the defendants’ plan. These programs for 
compensatory education are to be initiated for the 1970-71 
school year. Those programs which are already in effect 
should be continued in the 1970-71 school year, with any 
modifications which the Board of Education deems necessary 
in order to carry out this order.

VI.
Concluding R emarks

We are mindful that the task of the School District is a 
difficult and complex one. Constitutional standards must, of 
course, be met at the earliest feasible time, but a program 
which is too hastily conceived and developed could fail to

Opinion of District Court of May 21, 1970



120a

achieve its goals. In view of the essential preparation and 
planning- which must go into a program of this magnitude, 
it is felt that a two year period within which to accomplish 
desegregation and integration is reasonable, particularly 
in light of the fact that the plan calls for substantial prog­
ress to be made during the year 1971-72.

We have noted the desirability (even though it is not 
constitutionally mandated) of having both Negroes and 
Hispanos in the desegregated schools on as close to an equal 
basis as possible. If integration and desegregation are to 
have the maximum salutary effect, it would seem to follow 
that school children be exposed to all racial and ethnic 
groups which make up the larger community in which they 
live. True integration is not likely to occur in Denver if 
Negroes and Hispanos are separated in the public educa­
tional system, no matter how innocently the separation has 
come about.

It is also to be noted that only grades 1 through 6 of the 
elementary schools are covered in the Court’s plan. Kinder­
garten students are excluded. In the present de facto segre­
gation circumstances in which the effort is improvement, 
we assume that we have some discretion. Although it may 
have some value to desegregate children at that early age, 
it must be kept in mind that their school day is shorter than 
that of the older children. Mandatory transportation, which 
may well be necessary to effectuate much of the Court’s 
plan, seems impractical. It seems preferable to wait until 
that child is on a schedule more closely aligned with that 
of the other students at his school. Furthermore, because 
of the tender years of the kindergartners, it appears some­
what dubious whether the value to be gained is sufficient 
to justify placing these infants in this extraordinary setting.

Opinion of District Court of May 21, 1970



121a

Opinion of District Court of May 21, 1970
Finally, we cannot predict with, any degree of certainty 

how successful the free transfer or open enrollment pro­
gram will be. However, the evidence at the hearing was not 
encouraging. On the other hand, it may surprise us. In­
deed, there is no assurance that the program here prescribed 
will fully succeed. Its success will depend in large part on 
the effort which is expended and on the spirit in which the 
endeavor is carried out.

All adjudications in the case have now been completed 
and a final judgment can be entered. The remaining detail 
is a matter requiring the closest scrutiny and study which 
will require many months. There being no further sub­
stantive matter to decide, there is no just cause for delay 
and the entire matter can now be appealed.



122a

UNITED STATES COURT OF APPEALS 
T en th  Circuit 

May, 1971, T erm

Opinion o f Court o f Appeals o f June 11, 1971

No. 336-70
W ilfred K eyes, et al.,

Plaintiffs-Appellees,
v.

S chool D istrict N o. 1, Denver, Colorado, et al,

Def endants-Appellants.

No. 337-70— (Cross-appeal)
W ilfred K eyes, et al,

Plaintiff s-Appellants, 
v.

S chool D istrict No. 1, Denver, Colorado, et al,

D ef'endants-Appellees.

APPEAL FROM T H E  U N ITED  STATES DISTRICT COURT 

FOR T H E  DISTRICT OF COLORADO

(District Court No. C-1499)

Gordon G. Greiner, Denver, Colorado (Conrad K. Harper, 
New York, New York, on tie  brief), for Keyes, et al.



123a

William K. Ris, Denver, Colorado (Benjamin L. Craig and 
Michael H. Jackson, Denver, Colorado, on the brief), for 
School District No. 1, et al.
Before P ickett, H ill and S eth , United States Circuit 
Judges.
H ill , Circuit Judge.

This is a suit in which the parents of children attending 
Denver Public Schools sued individually, on behalf of their 
minor children, and on behalf of classes of persons similarly 
situated, to remedy the alleged segregated condition of 
certain Denver schools and the effects of that condition. 
The School District, the present Board of Education and 
its Superintendent were all named as defendants. The 
action was brought under 42 U.S.C. §§ 1983, 1985, 28 U.S.C. 
§1343(3), (4), and the Fourteenth Amendment of the 
United States Constitution seeking to enjoin defendants 
from maintaining, requiring, continuing, encouraging and 
facilitating separation of children and faculty on the basis 
of race, and further from unequally allocating resources, 
services, facilities and plant on the basis of race. Declara­
tory relief was also sought under 28 U.S.C. § 2201. On 
appeal, defendants appear as appellants and cross­
appellees, and plaintiffs appear as appellees and cross­
appellants.

The reported background is extensive. In July, 1969, 
appellees’ motion for preliminary injunction was granted 
in an opinion found at 303 F.Supp. 279. The motion sought 
to enjoin the rescission of Resolutions 1520, 1524 and 1531. 
The preliminary injunction was appealed and was re­
manded by this court for further findings and considera­
tion of additional questions. Thereafter, the preliminary 
injunction was supplemented and modified at 303 F.Supp.

Opinion of Court of Appeals of June 11, 1971



124a

289. The decision on the merits is recorded at 313 F.Supp. 
61, and the remedies are set forth in an opinion at 313 
F.Supp. 90.

The complaint set out two separate causes of action. 
The first cause contained six counts, all of which pertained 
to rescission of School Board Resolutions 1520, 1524 and 
1531. Therein the plaintiffs alleged that these Resolutions 
were an attempt by the School Board to desegregate and 
integrate the public schools of Northeast Denver, and that 
the rescission of these resolutions was unconstitutional 
because the purpose and effect was to perpetuate racial 
segregation in the affected schools. In connection with 
this cause of action, plaintiffs urge that the rescission of 
the Board Resolutions constituted affirmative state action 
resulting in de jure segregation in the schools affected 
thereby. The second cause of action contained three counts 
that are pertinent here. The first count, in effect, alleged 
that through affirmative acts the defendants and their 
predecessors deliberately and purposely created and main­
tained racial and ethnic segregation in the so-called “core” 
area schools within the district. The second count, in effect, 
alleged that the defendants had purposely maintained in­
ferior schools by their method of allocation to these 
schools, and such practice has caused those schools to be 
substantially inferior to other schools within the district 
with predominantly Anglo students. The effect of such 
practice, plaintiffs urged, denied the minority students an 
equal educational opportunity in violation of the equal 
protection clause of the Fourteenth Amendment. The 
third count was an attack upon the school district’s neigh­
borhood school policy. They urge such policy to be un­
constitutional because it results in segregated education.

Opinion of Court of Appeals of June 11, 1971



125a

In substance, the trial court found and concluded as to 
the first claim that the named schools in Northeast Denver 
were segregated by affirmative state action. In its findings, 
the trial court noted specific instances of boundary gerry­
mandering, construction of a new school and classrooms, 
minority-to-majority transfers, and excessive use of mobile 
classroom units in this section of the district, all of which 
amount to unconstitutional state segregation. In addition, 
it was held that the adoption of Resolutions 1520, 1524 
and 1531 was a bona fide attempt by the Board to recognize 
the constitutional rights of the students affected by prior 
segregation, and that the act of repudiating these Resolu­
tions was unconstitutional state action resulting in de jure 
segregation. As to the second claim, on the first count, the 
court found that the acts complained of in the core area 
were not racially inspired, and accordingly the allegations 
of de jure segregation were not accepted. On the second 
count, the court found that although the core area schools 
were not segregated by state action, fifteen designated 
schools should be granted relief because it was demon­
strated that they were offering their pupils an unequal 
educational opportunity in violation of the Fourteenth 
Amendment equal protection clause. Upon findings that 
the Denver neighborhood school policy had been constitu­
tionally maintained under the standards set forth in Board 
of Education of Oklahoma City v. Dowell, 375 F.2d 158 
(10th Cir. 1967), and Downs v. Board of Education of 
Kansas City, 336 F.2d 988 (10th Cir. 1964), relief on the 
third count was denied.

On appeal in No. 336-70, appellants attack the findings 
and conclusions as to the first claim and the second count 
of the second claim. In the cross-appeal, No. 337-70, the 
Keyes class urge error in the findings and conclusions 
regarding the first and third counts of the second claim.

Opinion of Court of Appeals of June 11, 1971



126a,

Appellants’ initial argument in No. 336-70 makes a two­
fold attack on the finding’s and conclusions regarding the 
existence of de jure segregation in the schools located in 
Denver’s Northeast sector. First, it is contended that under 
a proper application of the law, the evidence will not sup­
port a finding of de jure segregation. Second, appellants 
argue that the act of rescinding Resolutions 1520, 1524 and 
1531 was not an act of de jure segregation.

A complete understanding and resolution of the issues 
presented by appellants requires a survey of the events 
which preceded the Board’s action in rescinding the three 
Resolutions. In the Denver Public School System, there 
are 92 elementary schools, 16 junior high schools, and 9 
senior high schools.1 There has never been a law in 
Colorado requiring separate educational facilities for dif­
ferent races. The policy to which the School Board has 
consistently adhered1 is the neighborhood school plan. The 
goal is a centrally located school which children living 
within the boundary lines must attend. Although the Board 
has no written policy governing the setting of attendance 
boundaries, several factors have apparently been employed. 
Among these are current school population in an attendance 
area, estimated growth of pupil population, the size of the 
school, distance to be traveled, and the existence of natural

Opinion of Court of Appeals of June 11, 1971

1 The overall racial and ethnic composition of Denver Public 
Schools as of 1968-69 was as follows:
Educational

Level
Total

Students
%

Anglo
%

Negro
%

Hispano
Elementary 54,576 61.7 15.2 22.0
Junior High 18,576 64.0 15.5 17.0
Senior High 23,425 76.1 10.4 9.0

Totals 96,577 70.7 12.7 15.8



127a

boundaries.2 The Board also attempts to draw junior high 
school and senior high school boundary lines so that all 
students transferring from a given school will continue 
their education together.

On several occasions during the 1960’s, the Board formed 
committees to study the equality of educational oppor­
tunities being provided within the system. In 1962, the 
Voorhees Committee was assigned the onerous task. That 
group recognized that in a school district where there are 
concentrations of minority racial and ethnic groups, the 
result of a neighborhood school system may be unequal 
educational opportunities. Therefore, they recommended 
that the School board consider racial, ethnic and socio­
economic factors in establishing boundaries and locating 
new schools in order to create heterogeneous school com­
munities. The recommendations were apparently ignored.

Thereafter, in May, 1964, the Board passed Policy 5100 
which also recognized that the neighborhood school plan 
resulted in the concentration of some minority i*acial and 
ethnic groups in certain schools. Bather than abandon the 
neighborhood school concept, however, the Board decided 
to incorporate “changes or adaptations which result in a 
more diverse or heterogeneous racial and ethnic school 
population, both for pupils and for school employees.” But 
nothing of substance was accomplished.

In 1966, the Berge Committee was formed to examine 
Board policies with regard to the location of schools in 
Northeast Denver and to suggest changes which would 
lead to integration of Denver students. This committee

2 Report and Recommendations to the Board of Education School 
District Number One Denver, Colorado, by a Special Study on 
Equality of Educational Opportunity in the Denver Public Schools 
(March 1, 1964), pp. A-l to A-6.

Opinion of Court of Appeals of June 11, 1971



128 a

recommended that no new schools be built in Northeast 
Denver; that a cultural arts center be established for stu­
dent use; that educational centers be created; and that 
superior educational programs be initiated for Smiley and 
Baker Junior High Schools. Again, the recommendations 
were not effected.

In 1968, the Board passed the Noel resolution which 
again formally recognized the problem of concentrated 
racial and ethnic minority school populations in Northeast 
Denver and the possibility of resulting unequal educational 
opportunities. The resolution directed the Superintendent 
of Schools to submit to the Board a comprehensive plan 
for integrating the Denver Schools. A plan was submitted, 
and after a four-month study, Resolutions 1520, 1524 and 
1531 were passed. In essence, each of these resolutions 
sought to spread the Negro populations of these schools 
to numerous schools by boundary changes, thereby achiev­
ing what has been described as racial balance in all of 
them so that their predominantly Negro populations would 
become roughly 20% and white students from other areas 
would produce an Anglo population in each school of about 
80%. Resolution 1520 made changes in attendance areas 
of secondary schools; Resolution 1524 dealt with both sec­
ondary schools and junior high schools; and Resolution 
1531 changed attendance areas of the elementary schools.

However, before full implementation of the Resolutions 
could be accomplished, a Board election was held. Two 
candidates who promised to rescind the Resolutions were 
elected, and thereafter the Board did rescind Resolutions 
1520, 1524 and 1531. In their place, Resolution 1533 was 
passed which basically provided for a voluntary exchange 
program between the Northeast elementary schools and 
other elementary schools of the district. Shortly there­
after, this suit was initiated.

Opinion of Court of Appeals of June 11, 1971



129a

The schools of concern to this argument are located in 
Northeast Denver in what is generally referred to as the 
Park Hill area. The schools are: East High School, Smiley 
and Cole Junior High Schools, Barrett, Stedman, Hallett, 
Park Hill and Philips Elementary Schools. Prior to 1950, 
the Negro population was centered in the Five Points area, 
near the northwest corner of City Park. Since 1940, the 
Negro population has steadily increased from 8,000 to
15.000 in 1950, to 30,000 in 1960, and to approximately
45.000 by 1966. The residential movement reflecting this 
growth has been eastward, down a “corridor” which has 
fairly well defined north-south boundaries. In the early 
1950’s, York Street (some 16 blocks west of Colorado Boule­
vard) was the east boundary of the residential expansion. 
Ten years later, the movement had reached and crossed 
Colorado Boulevard to a limited degree, and now the cor­
ridor of Negro residences extends from the Five Points 
area to the eastern city limits. The schools of concern are 
in and adjacent to this narrow strip of Negro residences.

Barrett Elementary is located one block west of Colorado 
Boulevard in the heart of the Negro community. When it 
opened in 1960, the attendance lines were drawn to co­
incide almost precisely with the then eastern boundary of 
the Negro residential movement—Colorado Boulevard. 
When the school was being planned in 1958 and the sites 
for construction were being considered, the area west of 
Colorado Boulevard was already predominantly Negro; by 
1960, when the school opened, the racial composition of the 
neighborhood which it was to serve was reflected in the 
89.6% Negro student enrollment. In 1970, the racial and 
ethnic composition of the school was approximately 93% 
Negro, 7% Hispano.

In addition, Barrett was built to accommodate only 450 
students, a factor which manifestly precluded its use to

Opinion of Court of Appeals of June 11, 1971



130a

substantially relieve the overcrowded conditions at adjacent 
schools. In 1960, Stedman (then predominantly Anglo), 
which was eight blocks due east of Barrett, was well over 
its intended capacity. Bather than constructing a larger 
physical plant at Barrett to accommodate part of Sted- 
man’s overflow, Barrett’s size was restricted to serve only 
those pupils west of Colorado Boulevard.

The trial court held that “the positive acts of the Board 
in establishing Barrett and defining its boundaries were 
the proximate cause of the segregated condition which has 
existed in that school since its creation, which condition 
exists at present. . . . The action of the Board . . . was taken 
with knowledge of the consequences, and these consequences 
were not merely possible, they were substantially certain. 
And under such conditions we find that the Board acted 
purposefully to create and maintain segregation at Bar­
rett,” 303 F. Supp. at 290-91.

In 1960, Stedman was 96% Anglo, 4% Negro and was 
20% above capacity. By 1962, it was 35 to 50% Anglo and 
50 to 65% Negro. In 1963, it was 87.4% Negro and 18.6% 
Anglo, and still overcrowded. By 1968, this school was 
94.6% Negro and 3.9% Anglo. Stedman is eight blocks 
due east of Barrett, and in 1960 the residential trend all 
but insured that in a few years it would be predominantly 
Negro. In 1962, three boundary changes were proposed 
to the Board which would have transferred students from 
Stedman to Smith, Hallett and Park Hill, each of which 
was predominantly Anglo. These three proposals were 
refused by the Board. In 1964, the Board made two 
boundary changes which affected Stedman: (1) a pre­
dominantly Anglo section of Stedman’s school zone was 
detached to Hallett, and (2) the Park Hill—Stedman op­
tional zone (96% Anglo) was transferred to Park Hill.

Opinion of Court of Appeals of June 11, 1971



131a

To facilitate an expanding population at Stedman, which 
was overwhelmingly Negro, mobile units were erected.

The trial court held: “The actions of the Board with 
respect to boundary changes, installation of mobile units 
and repeal of Resolution 1531 shows a continuous affirma­
tive policy designed to isolate Negro children at Stedman 
and to thereby preserve the ‘white’ character of other Park 
Hill schools.” 303 F. Supp. at 292.

In 1960, Park Hill and Philips Elementary Schools were 
predominantly Anglo. In 1968, Park Hill was 71% Anglo, 
23.2% Negro and 3.8% Hispano; Philips was 55.3% Anglo, 
36.6% Negro and 5.2% Hispano. Notwithstanding the 
Negro movement into this area, these two schools have 
continued a majority of Anglos in the student body.

The court stated: “In light of the natural and probable 
segregative consequences of removing the stabilizing effect 
of Resolution 1531 on Park Hill and Philips and re-estab­
lishing the original district boundaries, the Board must be 
regarded as having acted with a purpose of approving 
those consequences.” 303 F. Supp. at 292-93.

In 1960, Hallett Elementary was 99% Anglo; in 1968 it 
was 90% Negro, 10% Anglo. The school is about 12 blocks 
due east of Stedman. When the Stedman boundary changes 
were considered in 1962, Hallett was under capacity and 
was 80 to 95% Anglo. The results of the boundary changes, 
had they occurred, would have brought Hallett up to ca­
pacity and would have had an integrative effect on the 
latter school. The 1964 Stedman boundary change that 
sent the predominantly Anglo section of Stedman to Hallett 
resulted in a 80% Anglo section of Hallett’s attendance 
area being transferred to Philips. The effect of the Hallett 
to Philips transfer was a reduction in Anglo pupils at 
Hallett from 68.5 to 41.5%. By 1965, when four mobile

Opinion of Court of Appeals of June 11, 1971



132a

units were built and additional classrooms constructed, 
Hallett was 75% Negro.

The court said: “The effect of the mobile units and addi­
tional classrooms was to solidify segregation at Hallett, 
increasing its capacity to absorb the additional influx of 
Negro population into the area.” 303 F. Supp. at 293.

The feeder schools for Smiley Junior High School are 
Hallett, Park Hill, Smith, Philips, Stedman, Ashley and 
Harrington. By the established residential trend, Smiley 
will soon be all Negro. In 1968 there were 23.6% Anglo, 
71.6% Negro and 3.7% Hispano, and there were 23 minority 
teachers. Only one other school in the entire Denver sys­
tem, Cole Junior High, had more than six minority teach­
ers. The court held: “The effect of this repeal [of Reso­
lutions 1520 and 1524] was to re-establish Smiley as a 
segregated school by affirmative Board action. At the time 
of the repeal, it was certain that such action would per­
petuate the racial composition of Smiley at over 75% 
minority and that future Negro population movement 
would ultimately increase this percentage. . . .W e, there­
fore, find that the action of the Board in rescinding Reso­
lutions 1520 and 1524 was wilful as to its effect on Smiley.” 
303 F. Supp. at 294.

In 1969, East High School was 54% Anglo, 40% Negro 
and 7% Hispano. The court held that neither before nor 
after the passage of Resolution 1520 could East be con­
sidered segregated. But “[r]escission of these resolutions 
might, through the feeder system, result in a segregated 
situation at East in the future.” 303 F. Supp. at 294. In 
the opinion at 313 F. Supp. 61, 68, the trial court extended 
its findings of de jure segregation to East High and Cole 
Junior High: “The effect of the rescission of Resolution 
1520 at East High was to allow the trend toward segre­

Opinion of Court of Appeals of June 11, 1971



133a

gation . . .  to continue unabated. The rescission of Reso­
lution 1524 as applied to Cole Junior High was an action 
taken which had the effect of frustrating an effort at Cole 
which at least constituted a start toward ultimate improve­
ment in the quality of the educational opportunity there. 
. . .  We must hold then that this frustraion of the .Board 
plan which had for its purpose relief of the effects of segre­
gation at Cole were unlawful.”

Thus the issue is whether, under applicable constitu­
tional principles, the Board has acted with regard to the 
Park Hill area schools in a manner which violates appellees’ 
Fourteenth Amendment rights. This controversy was tried 
to the district court without a jury. On the basis of the 
testimony and exhibits produced at that trial, the court 
made findings of fact and conclusions of law. To the extent 
that appellants’ or cross-appellants’ arguments rest upon 
a relitigation or reassessment of factual matters, Rule 52 
F.R.Civ.P. 28 U.S.C. requires us to defer to the findings 
of the trial court unless we are satisfied that they are
clearly erroneous. Mitchell v. Texas Gulf Sulphur, ------
F2d -----  (10th Cir. 1971); Fireman’s Fund Insurance
Company v. S.E.K. Construction Company, Inc.,----- F.2d
- — (10th Cir. 1970).

We begin with the fundamental principle that state im­
posed racial segregation in public schools is inherently 
unequal and violative of the equal protection clause.
Swann v. Charlotte-Meeklenburg Board of Education,-----
U.S. -----  (1971); Brown v. Board of Education, 347 U.S.
483 (1954); Downs v. Board of Education of Kansas City, 
336 F.2d 988 (1964). This Fourteenth Amendment pro­
hibition against racial discrimination in public schools is 
not limited to the action of state legislatures, but applies 
with equal force to any agency of the state taking such

Opinion of Court of Appeals of June 11, 1971



134a

action. Cooper v. Aaron, 358 U.S. 1 (1958). And we can 
perceive no rational explanation why state imposed segre­
gation of the sort condemned in Brown should be distin­
guished from racial segregation intentionally created and 
maintained through gerrymandering, building selection 
and student transfers. Taylor v. Board of Education of 
City School District of New Rochelle, 294 F.2d 36 (2nd 
Cir. 1961).

Appellants maintain that, although a racial imbalance 
does exist in the Park Hill area schools, it is justifiable 
under their neighborhood school policy which has been and 
is now operated with total neutrality regarding race. It 
is true that the rule of the Circuit is that neighborhood 
school plans, when impartially maintained and adminis­
tered, do not violate constitutional rights even though the 
result of such plans is racial imbalance. United States v. 
Board of Education of Tulsa County, 429 F.2d 1253 (10th 
Cir. 1970) ; Board of Education of Oklahoma City v. Dowell, 
375 F.2d 158 (10th Cir. 1967); Downs v. Board of Educa­
tion of Kansas City, supra. However, when a board of 
education embarks on a course of conduct which is moti­
vated by purposeful desire to perpetuate and maintain a 
racially segregated school, the constitutional rights of 
those students confined within that segregated establish­
ment have been violated.

The evidence supports the trial court’s findings regard­
ing Barrett Elementary School. When construction of new 
schools in predominantly Negro neighborhoods is based on 
rational, neutral criteria, segregative intent will not be 
inferred. Deal v. Cincinnati Board of Education, 369 F.2d 
55 (6th Cir. 1966); Sealy v. Department of Public Instruc­
tion of Pennsylvania, 252 F.2d 898 (3rd Cir. 1958); 
Craggett v. Board of Education of Cleveland, 234 F.Supp.

Opinion of Court of Appeals of June 11, 1971



135a

381 (N.D. Ohio 1964); Henry v. Godsell, 165 F.Supp. 87 
(E.D.Mich. 1958). Conversely, if the criteria asserted as 
justification for the construction and designation of atten­
dance lines are a sham or subterfuge to foster segregation, 
odious intent may be inferred. Here there is sufficient evi­
dence to support segregative intent.

The school was admittedly built in an area of increasing 
school population with the stated purpose of relieving 
overcrowded conditions at nearby schools. But the size 
of the school belies its intended purpose. Although Negro 
students transferred from nearby schools, with a large 
segment of Negro children formerly bussed to Park Hill 
being transferred to Barrett, none of the Anglos from 
overcrowded Stedman, eight blocks away, were transferred 
to Barrett. And in point of fact, the small physical plant 
at Barrett did little to relieve the overcrowded conditions 
in nearby elementary schools since even after 1960 every 
adjacent elementary school continued to operate over its 
intended capacity.3 The only school which now approached 
its actual intended capacity was Park Hill, which was pre­
dominantly Anglo. This is an unjustifiable non sequitur. 
The site upon which the building was constructed could 
have handled a significantly larger facility which would 
have had long range effects on the overcrowded conditions 
of the area. Instead, for obscure reasons, the building was

Opinion of Court of Appeals of June 11, 1971

School Capacity Enrollment % of Capacity
’59 ’60 ’59 ’60 ’59 ’60

Columbine 
Harrington 
Park Hill 
Stedman

780 780 
450 450 
660 630 
630 630

901 884 
690 546 
859 650 
687 698

116 113 
153 121 
130 103 
109 111

Barrett 450 507 113



136a

designed to hold only 450 pupils when the adjacent ele­
mentary schools in 1959 already had an excess pupil popu­
lation of 617.

Although the use of Colorado Boulevard under other 
circumstances could prove to he a valid exercise of Board 
discretion, it cannot be justified under the facts here. The 
Board admits that other elementary school attendance 
areas are intersected by major traffic thoroughfares, and 
that in at least one instance an elevated crossing was built 
to facilitate pupil safety. Thus it was not an immutable 
boundary which absolutely precluded the extension of 
attendance lines. On the whole, when viewing the reason 
asserted by the Board for the construction of Barrett, 
in light of the actual results obtained, we cannot find clear 
error in the district court’s finding that the size of the 
school and the location of its attendance boundaries re­
flected a purposeful intent to build and maintain a Negro 
school.

We are likewise compelled to support the findings of the 
trial court regarding the manipulation of boundaries and 
the use of mobile classroom units within the Park Hill area. 
These acts, found the trial court, “tend to isolate and con­
centrate Negro students in those schools which become 
segregated in the wake of Negro population influx into 
Park Hill while maintaining for as long as possible the 
Anglo status of those Park Hill schools which still re­
mained predominantly white.” 313 F.Supp at 65.

The Board’s refusal to alter the Stedman attendance 
area in 1962 was not an affirmative act which equates with 
de jure segregation. The evidence reflects that the pro­
posals would have assigned Stedman students to Smith, 
Hallett and Park Hill Elementary Schools. Although the 
racial composition of each of these schools was predom­
inantly Anglo in 1962, Park Hill was well over capacity,

Opinion of Court of Appeals of June 11, 1971



137a

Hallett was slightly over capacity, and Smith was just 
under capacity. But more important, the residential areas 
which were to be part of the transfer contained less than 
5% Negroes. Thus by making those alterations in atten­
dance zones, Stedman would have lost Anglo pupils to the 
other schools. There can be no racial overtones attributed 
to the Board’s refusal in 1962 to make the requested Sted­
man transfers.

However, we have found no evidence, nor have appel­
lants referred us to data, which rebuts or justifies the 1962 
Hallett to Philips transfer. Both schools were predomi­
nantly Anglo at the time, but Hallett was in a transition 
stage going from 85 to 95% Anglo in 1962 to 41.5% Anglo 
in 1964, and to 90% Negro in 1969. The students which 
were sent to Philips were in the former Hallett-Philips 
optional zone and were virtually 100% Anglo. The trial 
court held that the only thing accomplished by the re­
zoning was the moving of Anglo students from a school 
district which would gradually become predominantly Ne­
gro to one which has remained predominantly Anglo. The 
evidence does not contradict that analysis.

The other boundary alteration that gave rise to the trial 
court’s finding of gerrymandering of attendance zones in 
the Park Hill area occurred in 1964. In 1963, Hallett was 
68.5% Anglo, Philips was approximately 98% Anglo; Sted­
man was about 19% Anglo, and Park Hill was over 95% 
Anglo. The first change transferred a predominantly Anglo 
portion out of Stedman to Hallett. Second, the Park Hill- 
Stedman optional zone, which was virtually all Anglo, was 
transferred to Park Hill. Third, a predominantly Anglo 
section of the Hallett district was transferred to Philips. 
A predominantly Anglo section of Stedman’s district was 
sent further east to Hallett. In 1964, Hallett was reduced

Opinion of Court of Appeals of June 11, 1971



138a

to 41.5% Anglo, Philips was roughly 82% Anglo; Stedman 
was about 15% Anglo, Park Hill was about 90% Anglo.

Although there is a sharp conflict between the parties as 
to whose testimony and what data should be credited, there 
is evidence in the record to support the trial court’s de­
termination that these were segregative acts taken with 
knowledge of the effect they would have. The trend is clear 
that as the Negro population expanded into new neighbor­
hoods, the predominantly Anglo clusters were transferred, 
by the Board, to one of the remaining predominantly Anglo 
schools. Smiley Junior High was deemed to be a segregated 
school because of the racial composition of its students and 
its faculty. In addition, it appears that Anglo students were 
permitted to transfer to predominantly Anglo schools even 
though they lived in the Smiley attendance area. The find­
ings of the trial court, plus the additional effects of allow­
ing Anglos to transfer out of Smiley, are supported by evi­
dence of record and must be sustained.

At this point we pause to acknowledge that the problems 
facing the school board of any metropolitan city are varied 
and difficult. The complexities of managing a large school 
district such as Denver’s in a manner which provides equal 
educational treatment for all students are manifestly made 
more difficult when, through circumstances often beyond 
their control, a single racial group settles in a particular 
neighborhood. Even so, the perplexities of the task cannot
be used to justify abdication of constitutional responsibili­
ties.

m e n  a community experiences a steady and ascertain­
able expansion of Negro population resulting in a new and 
larger “Negro community”, the school board must exercise 
extreme caution and diligence to prevent racial isolation 
in those schools, m e n  new buildings are built, new class­

Opinion of Court of Appeals of June 11, 1971



139a

rooms added, attendance areas drawn, and teachers as­
signed, the board must guard against any acts which reflect 
anything less than absolutely neutral criteria for making the 
decisions. The facts as outlined above simply do not mirror 
the kind of impartiality imposed upon a hoard which ad­
heres to a neighborhood school plan. Cf. Downs v. Board of 
Education of Kansas City, supra. In sum, there is ample 
evidence in the record to sustain the trial court’s findings 
that race was made the basis for school districting with the 
purpose and effect of producing substantially segregated 
schools in the Park Hill area. This conduct clearly violates 
the Fourteenth Amendment and the rules we have hereto­
fore laid down in the Downs and Dowell cases. See Taylor 
v. Board of Education of City School District of New Ro­
chelle, 191 F. Supp. 181 (S.D.N.Y. 1961); 195 F. Supp. 231 
(S.D.N.Y. 1961); aff’d 294 F.2d 36 (2nd Cir. 1961).

The second portion of appellants’ first argument urges 
that the trial court erred in concluding that the act of re­
scinding Resolutions 1520, 1524 and 1531 was an act of de 
jure segregation in and of itself. It is their position that 
this was a valid exercise of the Board’s legislative powers; 
that there was no segregative effect; and that there were 
no underlying segregative motivations.

Since we have sustained the findings regarding state im­
posed segregation in the Park Hill area schools, it is un­
necessary to further decide whether the rescission of Reso­
lutions 1520,1524 and 1531 was also an act of de jure segre­
gation. It is sufficient to say that the Board’s adoption of 
those resolutions was responsive to its constitutional duty 
to desegregate the named schools and the trial court was 
within its powers in designating those Resolutions as the 
best solution to a difficult situation. Although the alterna­
tive plan proposed in Resolution 1533 is not totally devoid

Opinion of Court of Appeals of June 11, 1971



140a

of merit, a realistic appraisal of voluntary transfer plans 
has shown that they simply do not fulfill the constitutional 
mandate of dismantling segregated schools. In fact, the 
voluntary transfer plans previously employed in Denver 
have had a minimal effect on the segregated status of the 
Park Hill area schools. In sum, we conclude that the trial 
court properly refused to accept Resolution 1533 as a work­
able solution. Once state imposed segregation is found, trial 
courts are to employ their broad equitable powers to insure 
full and immediate desegregation. See Brown v. Board of 
Education, 349 U.S. 294 (1955). The implementation of 
Resolutions 1520, 1524 and 1531 comports with that duty 
and holds great promise in achieving that goal. (See Ap­
pendix I)

Appellants’ second argument relates to the older core 
area of the city which is populated predominantly by Ne­
groes and Hispanos. Appellees alleged in the trial court 
that the schools in this area were also segregated by un­
lawful state action. The trial court refused this plea, and 
it is the subject of the cross-appeal to be discussed below. 
However, in addition, appellees urged that a number of 
these same schools were offering their students an unequal 
educational opportunity, thus denying them their Four­
teenth Amendment right to equal protection. The conten­
tion is premised on the assertion that when compared to 
the other schools in the district, the core area schools were 
offering inferior education.

The trial court preliminarily resolved that of the 27 
schools allegedly offering a sub-standard education, only 
those with 70 to 75% concentration of either Negro or 
Hispano students would likely produce cognizable in­

Opinion of Court of Appeals of June 11, 1971



141a

feriority. 313 F. Supp. at 77. The schools so designated 
were:

Opinion of Court of Appeals of June 11, 1971

School Anglo (%) Negro (%) Hispano
Bryant-Webster* 23.3 .5 75.5
Columbine* .6 97.2 2.2
Elmwood* 7.9 0.0 91.6
Fairmont* 19.8 0.0 79.9
Fairview* 7.0 8.2 83.2
Greenlee* 17.0 9.0 73.0
Hallett* 38.2 58.4 2.6
Harrington* 2.2 76.3 19.6
Mitchell* 2.2 70.9 26.7
Smith* 4.0 91.7 3.3
Stedman* 4.1 92.7 2.7
Whittier* 1.4 94.0 4.5
Baker** 11.6 6.7 81.4
Cole** 1.4 72.1 25.0
Manual*** 8.2 60.2 27.5

*Elementary **Jr. High ***Sr. High

Ultimately the trial court did conclude that these desig­
nated schools were providing an education inferior to that 
being offered in the other Denver schools. 313 F.Supp. at 
97-99. The relief decreed varied as to each level, but 
generally provided that the twelve designated elementary 
schools, including Elyria and Smedley, are to be integrated 
with an Anglo composition in excess of 50%. One-half of 
these schools were to be desegregated and integrated by 
the fall of 1971, and the remainder must be desegregated 
and integrated by fall of 1972. Baker Junior High is to 
be similarly desegregated and integrated by fall of 1971. 
As to Cole Junior High, it could either be desegregated 
and integrated as are the elementary schools by fall of



142a

1972, or it could be made the center for essential district­
wide programs. Manual High is to be operated as a 
district-wide school for the continuation and expansion of 
its vocational and pre-professional programs.

Specifically, the court found (1) that on the basis of 
1968 Stanford Achievement Test results, the scholastic 
achievement in each of the designated schools was sig­
nificantly lower than in the other schools in the district; 
(2) that during 1968 in the designated schools there were 
more teachers without prior experience, more teachers on 
probation (zero to three years of experience), and fewer 
teachers with ten or more years teaching experience than 
in the selected Anglo schools; (3) that because of Board 
policy which allows intrasystem teacher transfers on the 
basis of seniority, the more experienced teachers trans­
ferred out of predominantly minority schools at the 
earliest opportunity; (4) that there are more pupil drop­
outs in the junior high and senior high schools in the desig­
nated schools; and (5) that the size and age of the school 
building do not of themselves affect the educational op­
portunity at a given school, but smaller and older buildings 
may aggravate an aura of inferiority.

The second portion of the finding that the designated 
schools offer an unequal educational opportunity is pre­
mised on the conclusion that “segregation, regardless of 
its cause, is a major factor in producing inferior schools 
and unequal educational opportunity.” 313 F.Supp. at 82.

Preliminarily it is necessary to determine whether a 
school which is found to be constitutionally maintained as 
a neighborhood school might violate the Fourteenth Amend­
ment by otherwise providing an unequal educational 
opportunity. The district court concluded that whereas 
the Constitution allows separate facilities for races when

Opinion of Court of Appeals of June 11, 1971



143 a

their existence is not state imposed, the Fourteenth Amend­
ment will not tolerate inequality within those schools. 
Although the concept is developed through a series of anal­
ogized equal protection cases, e.g., Griffin v. Illinois, 351 
U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963), 
it would appear that this is but a restatement of what 
Brown v. Board of Education, 347 U.S. 483, 493 (1954) 
said years ago: “Such an opportunity [of education], 
where the state has undertaken to provide it, is a right 
which must be made available to all on equal terms.”

For the moment we perceive no valid reason why the 
constitutional rights of school children would not be vi­
olated by an education which is sub-standard when com­
pared to other schools within that same district, provided 
the state has acted to cause the harm without substantial 
justification in terms of legitimate state interest. If we 
allow the consignment of minority races to separate schools, 
the minimum the Constitution will tolerate is that from 
their objectively measurable aspects, these schools must be 
conducted on a basis of real equality, at least until any 
inequalities are adequately justified. Hobson v. Hansen, 
269 F.Supp. 401 (D.D.C. 1967), modified sub nom, Smuck v. 
Hobson, 408 F.2d 175 (D.C.Cir. 1969).

The trial court’s opinion, 313 F.Supp. at 81, 82, 83, leaves 
little doubt that the finding of unequal educational oppor­
tunity in the designated schools pivots on the conclusion 
that segregated schools, whatever the cause, per se produce 
lower achievement and an inferior educational opportunity. 
The quality of teachers in any school is manifestly one of 
the factors which affects the quality of schooling being 
offered. And the evidence of the case supports the finding 
that the teacher experience in the designated core area 
schools is less than that which exists in other Denver

Opinion of Court of Appeals of June 11, 1971



144a

schools. However, we cannot conclude from that one 
factor—as indeed neither could the trial court—that in­
ferior schooling is being offered. Pupil dropout rates and 
low scholastic achievement are indicative of a flaw in the 
system, but as indicated by appellees’ experts, even a com­
pletely integrated setting does not resolve these problems 
if the schooling is not directed to the specialized needs 
of children coming from low socio-economic and minority 
racial and ethnic backgrounds. Thus it is not the prof­
fered objective indicia of inferiority which causes the sub­
standard academic performance of these children, but a 
curriculum which is allegedly not tailored to their educa­
tional and social needs.

As stated in the first instance then, the trial court’s 
findings stand or fall on the power of federal courts to 
resolve educational difficulties arising from circumstances 
outside the ambit of state action. It was recognized that 
the law in this Circuit is that a neighborhood school policy 
is constitutionally acceptable, even though it results in 
racially concentrated schools, provided the plan is not used 
as a veil to further perpetuate racial discrimination. 313 
F.Supp. at 71. In the course of explicating this rule and 
holding that the core area school policy was constitutionally 
maintained, the trial court rejected the notion that a neigh­
borhood school system is unconstitutional if it produces 
segregation in fact. However, then, in the final analysis, 
the finding that an unequal educational opportunity exists 
in the designated core schools must rest squarely on the 
premise that Denver’s neighborhood school policy is viola­
tive of the Fourteenth Amendment because it permits 
segregation in fact. This undermines our holdings in the 
Tulsa, Downs and Dowell cases and cannot be accepted 
under the existing law of this Circuit.

Opinion of Court of Appeals of June 11, 1971



145a

We cannot dispute the welter of evidence offered in the 
instant case and recited in the opinion of other cases that 
segregation in fact may create an inferior educational 
atmosphere. Appellees observe that several of the federal 
district courts across the land have indicated that because 
of the resulting deficiencies, the federal courts should play 
a role in correcting the system. Davis v. School District 
of the City of Pontiac, 309 F.Supp. 734 (E.D.Mich. 1970); 
United States v. School District 151 of Cook County, 
Illinois, 286 F.Supp. 786 (N.D.I11. 1968); Hobson v. Hansen, 
269 F.Supp. 401 (D.D.C. 1967); Blocker v. Board of Educa­
tion of Manhassett, New York, 226 F.Supp. 208 (E.D.N.Y. 
1964); Branche v. Board of Education of the Town of 
Hempstead, 204 F.Supp. 150 (E.D.N.Y. 1962); and Jackson 
v. Pasadena City School District, 382 P.2d 878 (S.C.Cal. 
1963). However, the impact of such statements is dimin­
ished by indications in the Hobson, Blocker, Branche, Cook 
County, Pontiac, and Jackson cases that the racial im­
balance resulted from racially motivated conduct.

Our reluctance to embark on such a course stems not 
from a desire to ignore a very serious educational and 
social ill, but from the firm conviction that we are without 
power to do so. Downs v. Board of Education, 336 F.2d 
at 998. Before the power of the federal courts may be 
invoked in this kind of case, a constitutional deprivation 
must be shown. Brown v. Board of Education, 347 U.S. 
483, 493-95 (1954) held that when a state segregates 
children in public schools solely on the basis of race, the 
Fourteenth Amendment rights of the segregated children 
are violated. We never construed Brown to prohibit 
racially imbalanced schools provided they are established 
and maintained on racially neutral criteria, and neither 
have other circuits considering the issue. Deal v. Cincinnati

Opinion of Court of Appeals of June 11, 1971



146a

Board of Education, 369 F.2d 55 (6th Cir. 1966); 419 F.2d 
1387 (1969); Springfield School Committee v. Barksdale, 
348 F.2d 261 (1st Cir. 1965); Bell v. School City of Gary, 
Indiana, 324 F.2d 209 (7th Cir. 1963). Unable to locate a 
firm foundation upon which to build a constitutional de­
privation, we are compelled to abstain from enforcing the 
trial judge’s plan to desegregate and integrate the court 
designated core area schools.

Although the Board is no longer required by court order 
to correct the situation in the core area schools, we are 
reassured by the Board’s passage of Resolution 1562 that 
the efforts made thus far will be only the beginning of a 
new effort to relieve the problems of those schools. In 
Resolution 1562, the Board has resolved that regardless 
of the final outcome of this litigation, it intends to improve 
the quality of education offered in the system. And it spe­
cifically directs the Superintendent and his staff to devise 
a comprehensive plan “directed toward raising the educa­
tional achievement levels at the schools specified by the 
District Court in its opinion.” The salutary potential of 
such a program cannot be minimized, and the Board is to 
be commended for its initiative. Because of the significance 
of the Resolution, it is set out in full in Appendix II.

Appellants have also urged that mandatory bussing of 
students from the core area schools is neither compelled 
by the Constitution nor allowed by the Civil Rights Act, 
42 U.S.C. § 2000c-6(a) (2). Although the disposition of the 
issue regarding the status of segregation in the core area 
schools obviates the necessity of deciding that issue, it is 
perfectly clear to us that where state imposed segregation 
exists, as it does in the Park Hill area, bussing is one of 
the tools at the trial court’s disposal to alleviate the condi­
tion. It cannot be gainsaid that bussing is not the panacea

Opinion of Court of Appeals of June 11, 1971



147a

of segregation. But, after considering all the alternatives, 
if the trial court determines that the benefits outweigh 
the detriments, it is within its power to require bussing. 
Swann v. Charlotte-Mecklenburg Board of Education —— 
U.S. ----- - (1971).

The cross-appeal is first directed at the core schools 
which the district court refused to label as segregated by 
state action. At the outset, cross-appellants argue that 
they were required to labor under an erroneous burden of 
proof, and that the degree of justification for permitting 
racially imbalanced schools to exist was too low. The law 
of this Circuit guides us to approve the trial court’s man­
ner of handling the contested issues.

With the knowledge that we have said that neighborhood 
schools may be tolerated under the Constitution, it would 
be incongruous to require the Denver School Board to 
prove the non-existence of a secret, illicit, segregatory in­
tent. It was indicated in the Tulsa case that neighborhood 
school plans are constitutionally suspect when attendance 
zones are superficially imposed upon racially defined neigh­
borhoods, and when school construction preserves rather 
than eliminates the racial homogeny of given schools. 
United States v. Board of Education of Tulsa County, 
429 F.2d at 1258-59. But that case dealt with a school 
system which had previously operated under a state law 
requiring segregation of races in public education. As in 
all disestablishment cases where a former dual system 
attempts to dismantle its segregated schools, the burden 
was on the Tulsa School Board to show that they had 
undertaken to accomplish a unitary public school system. 
Such an onerous burden does not fall on school boards who 
have not been proved to have acted with segregatory intent. 
Cross-appellants’ reliance on United States v. School Dis­
trict 151 of Cook County, Illinois, 286 F. Supp. 786 (N.D.

Opinion of Court of Appeals of June 11, 1971



148a

111. 1968), aff’d 404 F.2d 1125 (7th Cir. 1968), is misplaced 
for the same reasons set out above. In that case, the court 
was likewise dealing with a school district which was segre­
gated by unlawful state action.

Where, as here, the system is not a dual one, and where 
no type of state imposed segregation has previously been 
established, the burden is on plaintiff to prove by a pre­
ponderance of evidence that the racial imbalance exists 
and that it was caused by intentional state action. Once 
a prima facie case is made, the defendants have the burden 
of going forward with the evidence. Hobson v. Hansen, 
269 F. Supp. at 429. They may attack the allegations of 
segregatory intent, causation and/or defend on the grounds 
of justification in terms of legitimate state interests. But 
the initial burden of proving unconstitutional segregation 
remains on plaintiffs. Once plaintiffs prove state imposed 
segregation, justification for such discrimination must be 
in terms of positive social interests which are protected or 
advanced. The trial court held that cross-appellants failed 
in their burden of proving (1) a racially discriminatory 
purpose and (2) a causal relationship between the acts 
complained of and the racial imbalance admittedly existing 
in those schools.

The evidence in this case is voluminous, and we have 
attempted to carefully scrutinize it. Thorough review re­
flects that cross-appellants have introduced some evidence 
which tends to support their assertions. However, there 
is also evidence of record which supports the findings of 
the trial court, so under Rule 52 F.R.Civ.P. 28 U.S.C., we 
must affirm. It must be remembered that we do not review 
this record de novo but can reverse fact findings only 
upon clear error. That kind of mistake is not extant here. 
The background of the allegedly unlawful acts and the

Opinion of Court of Appeals of June 11, 1971



149a

trial court’s analysis of the .Board’s discriminatory intent 
and/or causation, with which we agree in each instance, 
follows.

The New Manual High School was constructed in 1953, 
just two blocks from old Manual High School. Through 
the years, from 1927 to 1950, Manual High had enrolled 
lessening numbers of Anglo students until in 1953, the 
school was less than 40% Anglo, about 35% Negro, and 
about 25% Hispano. The attendance zone for New Manual 
was the same as it had been for Manual, opening at about 
66%% capacity. Cross-appellants contend that the con­
struction of New Manual at its present location insured its 
segregated character, and that this act was equivalent to 
state imposed segregation. The trial court refused this 
argument on two grounds: First, that the decision to build 
New Manual on its present site was not racially motivated, 
and, second, that state action was not the cause of the 
current racial imbalance. 313 F. Supp. at 75.

In 1956 the Board adopted boundary changes which di­
rectly affected Manual High School (42% Negro) and Cole 
Junior High School (40% Negro). A portion of the Manual 
—East High optional attendance area was converted to a 
mandatory Manual attendance zone, and a portion of the 
Cole—Smiley Junior High optional attendance area was 
made a mandatory Cole attendance zone. The new manda­
tory zones were coterminus with the approximate eastern 
boundary of the Negro residential movement. Again the 
trial court held that cross-appellants had failed to estab­
lish that the boundary changes were racialy motivated or 
that those alterations caused the current racial imbalance. 
313 F. Supp. 75.

In 1962 the Board adopted boundary changes which 
eliminated the optional attendance zones on three sides of 
Morey Junior High School. The changes involved trans­

Opinion of Court of Appeals of June 11, 1971



150a

ferring the Morey-Hill optional zone to Hill Junior High; 
the Morey-Byers optional zone to Byers Junior High; the 
Morey-Cole optional zone to Morey Junior High; and the 
Baker-Morey optional zone to Morey. Morey is located 
on the south side of the Cole attendance area and declined 
from 71% Anglo in 1961 to 45% Anglo in 1962. The trial 
court found, however, that despite the apparent segregatory 
effect at Morey, the concentration of Negroes at Cole was 
relieved, and the facilities at Hill, Byers and Baker Junior 
High Schools were better utilized. Thus, although on the 
surface the alterations appear to be racially inspired, there 
is evidence to sustain the trial court’s finding that the 
changes were not carried out with the design and for the 
purpose of causing Morey to become a minority school. 
313 F. Supp. at 72.

Cross-appellants have also alluded to other factors which 
they urge are probative of segregatory intent, i.e., faculty 
and staff assignments, obfuscation of minority achievement 
data, and double standards in dealing with overcrowding. 
Although minority teachers were usually located in the 
core area or Park Hill area schools, the Board’s reason 
for doing so was not reflective of segregative desires. It 
operated on the prevailing educational theory of the day, 
the Negro pupils related more thoroughly with Negro 
teachers. The rationale was that the image of a success­
ful, well educated Negro at the head of the class provided 
the best kind of motivation for Negro children and that 
in turn the Negro teacher had a greater understanding 
for the Negro pupil’s educational and social problems. 
Although the validity of that theory is under severe attack 
today, we do not agree that the results of its past applica­
tion infer segregatory intent. In response to new educa­
tional theories, the Denver public school system has today 
assigned Negro teachers to schools throughout the system

Opinion of Court of Appeals of June 11, 1971



151a

and has reduced the percentages of Negro teachers in the 
predominantly minority schools.

We are unable to see how the evidence regarding the ob­
fuscation of minority achievement data relates to the 
Board’s alleged segregative intent. And although cross­
appellants urge that a double standard was used to deal 
with overcrowded conditions, the trial court’s reluctance to 
premise segregatory intent on that basis is supported by 
the record. The evidence reflects that the bussing of Anglo 
students was caused by the city’s annexation of residential 
areas that did not have school buildings. Hence the school 
children in these annexed areas were transported to the 
nearest school where space was available. The premise of 
alleging a double standard in the treatment of races is 
resultingly non-existent.

The remainder of the issues designated in the cross­
appeal have either been disposed of or made irrelevant by 
preceding parts of this opinion.

The Final Judgment and Decree of the trial court is 
affirmed in all respects except that part pertaining to the 
core area or court designated schools, and particularly the 
legal determination by the court that such schools were 
maintained in violation of the Fourteenth Amendment be­
cause of the unequal educational opportunity afforded, this 
issue having been presented by the Second Count of the 
Second Cause of Action contained in the complaint. In 
that respect only, the judgment is reversed. The case is 
accordingly remanded for the implementation of the plan 
in accordance with this opinion. The trial court is directed 
to retain jurisdiction of the case for the purpose of super­
vising the implementation of the plan, with full power to 
change, alter or amend the plan in the interest of justice 
and to carry out the objective of the litigation as reflected 
by this opinion.

Opinion of Court of Appeals of June 11, 1971



152a

Opinion of Court of Appeals of June 11, 1971 

APPENDIX I

Racial and E thnic Composition op Subject Schools 
W ith Respect to Use op Resolutions 1520, 1524 and 1531

I f  Resolution 1520 is used:1 1 2

Senior High School Total
No.

Anglo 
No. %

Negro 
No. %

Hispano 
No. %

East 2,600 1,776 68 649 25 175 7
George Washington 2,896 2,528 87 333 11 35 1
South 2,739 2,258 82 147 5 334 12

Totals 8,235 6,562 80 1,129 14 544 7

I f  Resolution 1520 is not used:2

Senior High School Total
No.

Anglo 
No. %

Negro 
No. %

Hispano 
No. %

East 2,623 1,409 54 1,039 40 175 7
George Washington 2,942 2,823 96 84 3 35 1
South 2,670 2,330 87 6 0 334 13

Totals 8,235 6,562 80 1,129 14 544 7

1 Source: Compiled from The Review, Official Publication, 
Denver Public Schools, Vol. XLX (sic), May, 1969, supplemented 
by information supplied by school officials, The Review, Vol. XLIX, 
April, 1969. [Plaintiffs’ Exhibit 7C]

2 Source: Compiled from Estimated Ethnic Distribution of 
Pupils, Secondary Schools—September 23, 1968, Denver Public 
Schools, Division of Personnel Services. [Plaintiffs’ Exhibit 7D]



153a

Opinion of Court of Appeals of June 11, 1971

I f  Resolutions 1520 and 1524 are iised:3
Junior High School Total

No.
Anglo 

No. %
Negro 

No. %
Hispano 
No. %

Byers 1,241 1,053 85 110 9 78 6
Cole 944 9 1 661 70 274 29
Grant 885 696 79 107 12 82 9
Hill 1,303 1,035 79 226 17 42 3
Kepner 1,483 1,016 69 70 5 397 27
Kunsmiller 1,949 1.544 79 245 13 160 8
Merrill 1,578 1,350 86 205 13 23 1
E-ishel 1,286 939 73 39 3 308 24
Smiley 1,333 960 72 306 23 67 5
Thomas Jefferson 1,637 1,584 97 45 3 8 0

Totals 13,639 10,186 75 2,014 15 1,439 11

I f  Resolutions 1520 and 1524 are 

Junior High School Total Anglo

not used:* 4 

Negro Hispano
No. No. % No. % No. %

Byers 1,138 1,053 93 7 1 78 7
Cole 1,219 46 4 884 73 289 24
Grant 815 696 85 37 5 82 10
Hill 1,753 1,685 96 26 1 42 2
Kepner 1,437 1,016 71 24 2 397 28
Kunsmiller 1,709 1,544 90 5 0 160 9
Merrill 1,578 1,550 98 5 0 23 1
Kishel 1,250 939 75 3 0 308 25
Smiley 1,553 367 24 1,112 72 74 5
Thomas Jefferson 1,597 1,584 99 5 0 8 1

Totals 14,049 10,480 75 2,108 15 1,461 10

8 Source: Compiled from The Review, Official Publication, 
Denver Public Schools, Vol. XLX (sic), May, 1969, supplemented 
by information supplied by school officials, The Review, Vol. XLIX, 
April, 1969. [Plaintiffs’ Exhibit 8C]

4 Source: Compiled from Estimated Ethnic Distribution of 
Pupils, Secondary Schools—September 23, 1968, Denver Public 
Schools, Division of Personnel Services. [Plaintiffs’ Exhibit 8D]



154a

Opinion of Court of Appeals of June 11, 1971

I f  Resolution 1531 is used:5

Elementary School Total
No.

Anglo 
No. %

Negro 
No. %

Eispano 
No. %

Asbury 570 480 84 61 11 29 5
Ashley 368 444 81 60 11 44 8
Barrett 368 269 73 88 24 11 3
Carson 720 562 78 144 20 14 2
Denison 580 482 83 31 5 67 12
Force 922 744 81 86 9 92 10
Montclair & Annex 753 602 80 120 16 30 4
Moore 622 460 74 90 14 72 12
Palmer 482 390 81 72 15 19 4
Park Hill 863, 682 79 112 13 69 8
Philips 584 409 70 128 22 47 8
Sehenek 765 638 83 31 4 96 13
Steck 431 353 82 73 17 4 1
Stedman 566 27 5 514 91 25 4
Steele 569 424 75 103 18 42 7
Whiteman 550 429 78 99 18 22 4

Totals 9,893 7,395 75 1,812 18 683 7

5 Source: Compiled from The Review, Official Publication, 
Denver Public Schools, Vol. XLX (sic), May, 1969, supplemented 
by information supplied bv school officials. [Plaintiffs’ Exhibit 
9D]



155a

Opinion of Court of Appeals of June 11, 1971

I f  Resolution 1531 is not used:*

Elementary School Total
No.

Anglo 
No. %

Negro 
No. %

Hispano 
No. %

Asbury 540 480 90 31 6 29 5
Ashley 550 472 86 35 6 43 8
Barrett 423 1 0 410 97 12 3
Carson 629 568 90 42 7 19 3
Denison 550 482 88 1 0 67 12
Force 862 744 86 26 3 92 11
Montclair 634 588 93 16 2 30 5
Montclair Annex 161 158 98 3 2 0 0
Moore 580 460 79 48 8 72 12
Palmer 482 442 92 24 5 16 3
Park Hill 963 684 71 223 23 56 6
Philips 555 307 55 203 37 45 8
Schenck 735 638 87 1 0 96 13
Steek 410 353 86 44 10 13 3
Stedman 686 27 4 634 92 25 4
Steele 499 424 85 33 7 42 8
Whiteman 610 537 88 49 8 24 4

Totals 9,869 7,365 75 1,823 18 681 7

6 Source: Compiled from Estimated Ethnic Distribution of 
Pupils, Elementary Schools—September 23, 1968, Denver Public 
Schools, Division of Personnel Services. [Plaintiffs’ Exhibit 9E]



156a

Opinion of Court of Appeals of June 11,1971 

APPENDIX II

W hereas, this Board of Education, in common with other 
boards of education in urban areas in this country, has be­
fore it the extremely difficult task of providing relevant and 
effective education to children of infinitely varied back­
grounds and abilities; and

W hereas, this Board of Education is concerned about all 
the children of Denver and is constantly searching for ways 
and means to improve the quality of education offered to 
them; and

W hereas, this Board of Education has, as an interim 
measure, adopted various plans and approaches toward the 
improvement of the quality of education offered to the 
children of Denver, including voluntary open enrollment 
with transportation provided; and

W hereas, the intervention of a lawsuit in the United 
States District Court has prevented this interim measure 
from achieving its full potential; and

W hereas, that Court in its Memorandum Opinion dated 
March 21, 1970, has found that certain schools of this 
School District show average pupil achievement below the 
city-wide average achievement of pupils; and

W hereas, this Board is, and has been, aware of these 
differences in average pupil achievement among the various 
schools and has been attempting to set educational policy 
which will permit the professional staff of this School Dis­
trict to devise and employ new methods of education de­
signed to improve achievement in all schools including those 
with low achievement averages, by such means as early 
childhood education, intensified reading programs, cultural



157a

arts centers, outdoor education centers, school clusters or 
complexes, in-service education, modification and expansion 
of curricular offerings, and other promising ideas; and

W hereas, the United States District Court now has in­
vited this Board to devise and present to it a plan designed 
to improve the achievement of pupils in certain of its 
schools;

Now, T herefore, It Is R esolved by this Board of Educa­
tion that, regardless of the final outcome of the litigation, 
this Board reaffirms its intent to continue improvement in 
the quality of education offered to all of the children of 
Denver, and it hereby directs the Superintendent and his 
staff to devise a plan directed toward raising the educational 
achievement levels at the schools specified by the District 
Court in its opinion. This plan shall be a pilot program 
which shall include consideration of the following:

1. Differentiated staffing;
2. Increasing the level of faculty experience and de- 

decreasing faculty turnover;

3. Increased and improved inservice training for staff;
4. Voluntary open enrollment as opposed to manda­

tory transfers for pupils;
5. The school complex concept which will focus on de­

centralized decision-making, community and parent 
involvement, new educational programs and agency 
cooperation;

6. Early childhood education;

7. Special programs now being implemented at Cole 
Junior High School and Manual High School;

Opinion of Court of Appeals of June 11, 1971



158 a

8, Special programs available under the Educational 
Achievement Act of Colorado (Senate Bill 174);

9. Other promising educational innovations.

The plan shall be feasible and within the financial ability 
of the District, and include a timetable for implementation.

Such a plan shall be submitted to the Board on or before 
May 6,1970.

Opinion of Court of Appeals of June 11, 1971



159a

May Teem—-June 11, 1971

Before Honorable John C. Pickett, Honorable Delmas C. 
Hill and Honorable Oliver Seth, Circuit Judges.

Judgment of Court of Appeals

No. 336-70

W ilfred K eyes, et al.,

Plaintiffs-Appellees, 
v.

School District No. 1, Denver, Colorado, et al.,

Defendants-Appellants.

No. 337-70 
(Cross-appeal)

W ilfred K eyes, et al.,

Plaintiffs-Appellants,
v .

School D istrict N o. 1, Denver, Colorado, et al.,

Defendants-Appellees.

These causes came on to be heard on the record on appeal 
from the United States District Court for the District of 
Colorado, and were argued by counsel.

On consideration whereof, it is ordered that the Judgment 
of said court is affirmed in all respects except that part



160a

pertaining to the core area or court designated schools, and 
particularly the legal determination by the court that such 
schools were maintained in violation of the Fourteenth 
Amendment because of the unequal educational opportunity 
afforded, this issue having been presented by the Second 
Count of the Second Cause of Action contained in the com­
plaint. In that respect only, the judgment is reversed. The 
case is accordingly remanded for the implementation of the 
plan in accordance with this opinion. The trial court is 
directed to retain jurisdiction of the case for the purpose 
of supervising the implementation of the plan, with full 
power to change, alter or amend the plan in the interest of 
justice and to carry out the objective of the litigation as 
reflected by the opinion of this Court.

/ s /  H oward K. P hillips
H oward K. P hillips, Clerk

A true copy 
Teste
Howard K. Phillips 
Clerk, U. S. Court of 
Appeals, Tenth Circuit

By / s /  Marylee D owning 
Deputy Clerk

Judgment of Court of Appeals



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