Keyes v. School District No. 1 Denver, CO. Joint Brief of Appellees

    IN THE UNITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

Nos, 85-2814, 87-2634

WILFRED KEYES, et ai.r
Plaintiffs-Appellees,

and
CONGRESS OF HISPANIC EDUCATORS, et al..

Plaintiff/Intervenors-Appellees
v,
SCHOOL DISTRICT NO; IT, DENVER, COLORADO, at al., 

Dsfendants-Appellants.

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

JOINT BRIEF OF APPELLEES

Norma V. Cantu
Mexican American Legal Defense '■ 

and Educational Fund, Inc.
314 E. Commerce Street 
Suite 200
San Antonio, Texas 73205
Peter Roos
2111 Mission Street
Room 401
San Francisco, California 9411C
ATTORNEYS FOR PLAINTIFF/
INTERVENORS-APPELLEES

Gordon G„ Greiner 
Holland & Hart 
P. O. Box 8749 
555 17th Street 
Suite 2900 .
Denver, Colorado 80201
James M. Nabrit, III 
9^ Hudson Street, 16th Fir. 
New fork,- New York 10013

ATTORNEYS FOR PLAINTIFFS- 
AFPEL.LSES



TABLE OF CONTENTS

JURISDICTION ................................................... 1
STATEMENT OF CASE............................................... 2

HISTORY OF THE CASE ....................................... 2
The 1974 Decree ...................................... 2
The 1976 Order ....................................... 3
The 1979 Hearings and Order .......................... 3
The Hearing On The Total Access Plan -
March, 1982 .......................................... 5
Hearing On Consensus Plan And Order Of
May 12, 1982 ......................................... 5
The Ruling On The Language Complaint -
December 1983 ........................................ 6
Events Leading Up To The 1984 Hearings ...............7

THE PROCEEDINGS BELOW..................................... 9
RESTATEMENT OF FACTS........................................... 13

The History of Integration and Resegegation At
Barrett, Harrington And Mitchell Elementary
Schools .................................................. 13
Barrett .................................................. 14
Harrington ............................................... 15
Mitchell ................................................. 15
Remedial Proposals For Barrett, Mitchell and
Harrington ............................................... 17
The Resegregative Effect Of The Baby-Sitter
Transfer Policy .......................................... 19
Evidence Relating To Building Utilization, School 
Construction And Abandonment And Pupil Assignment 
Practices ................................................ 22



Colorado Constitution "Anti-Busing" Amendment
Faculty Segregation and Desegregation ......

ARGUMENT..........................................
I. The findings and record abundantly support

the injunctions in effect from 1976 until
October 1987 and the retention of jurisdiction
during that period ..........................
A. The Board's arguments about the

previous injunctions are without merit 
because of mootness, untimeliness and 
waiver or acquiescence .................

B. The findings of transfer abuses
supported injunctive relief and 
retained jurisdiction ...................

C. The findings on faculty segregation
supported injunctive relief and 
retained jurisdiction ..................

D. The duty to prevent re-establishment
of the dual system by construction and 
abandonment policies supports the 
retention of jurisdiction ..............

E. The finding that the Consensus Plan 
needlessly resegregated Barrett,
Mitchell and Harrington supported the 
1985 Orders ............................

F. The need to avoid conflict between
desegregation remedies and the 
language consent decree supports the 
retention of jurisdiction during 
implementation of the language plan ....

G. The court did not abuse its discretion
in retaining jurisdiction and in its 
management of the case .................

H. The decisions below are not in conflict
with the Spangler case .................

II. The record and findings support the October 
1987 injunction and the limited retention

25
26 
27

27

27

30

31

32

33

36

37

38

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of jurisdiction .....................................40
III. The Interim Decree is an Appropriate

Exercise of Judicial Discretion......................41
School Desegregation Is Not Yet Complete
In Denver ...........................................42
The Interim Decree Is A Temporary, And
Reduced Intrusion Into Total Board Control ......... 43
The Provisions Of The Interim Decree Are 
Sufficiently Specific Under Rule 65(d)....
Adequate Safeguards Exist Against 
Inadvertent Contempt ....................
The Decree Properly Describes The Enjoined 
Conduct In Terms Of Its Effect ..........
The Interim Decree Imposes No Requirement 
Of Maintaining Racial Balances Through 
Periodic Adjustments In Assignments .....
The Interim Decree Imposes No Obligation 
To Undertake New Remedies ............

44

45

46

48

48
CONCLUSION ....................................................49
REQUEST FOR ORAL ARGUMENT......................................49

-ill-



TABLE OF AUTHORITIES

Cases Page

Adams v. United States, 620 F.2d 1277
(8th Cir.), cert. denied. 449 U.S.
826 (1980) ............................................... 31

Battle v. Anderson. 708 F.2d 1523
(10th C'ir. 1983), cert dismissed.
465 U.S. 1014 (1984) .......................... 1,27,33,37,39

Board of Pub. Inst, v. Braxton. 326 F.2d 616
(5th Cir. 1964) ........................................... 2

Brown v. Board of Education. 349 U.S. 294
(1955) ................................................... 37

City of Mesquite v. Aladdin's Castle. Inc..
455 U.S. 283 (1982) .....................  39

Columbus Board of Ed. v. Penick. 443 U.S. 449
(1979) ................................................ 31,34

Davis v. School Commissioners of Mobile. 402
U.S. 33 (1971) ........................................... 34

Dayton Board of Ed. v. Brinkman. 443 U.S. 526
(1979) (Dayton II) ........................  31,34,44

Dowell v. Board of Education. 795 F.2d 1516 (10th Cir.) 
cert, denied. ___ U.S. ___, 107 S.Ct.
420, 93 L.Ed. 2d 370 (1986) ........................ 33,39,45

Ford v. Kammerer. 450 F.2d 279 (3rd Cir.
1971) .................................................... 46

Frederick L. v. Thomas, 557 F.2d 373
(3rd Cir. 1977) ........................................... 2

Green v. County School Board. 391 U.S.
430 (1968) ............................................ 32,33

Hoots v. Commonwealth. 587 F.2d 1340 (3rd 
Cir. 1978) ........................ 2



Keyes v. School District No. 1. 413 U.S.
189 (1973) ............................................... 14

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

Keyes v. School Dist No. 1, 474 F. Supp. 1265
(D. Colo. 1979) ........................................ 3,35

Keyes v. School Dist No. 1, 540 F. Supp. 399
(D. Colo. 1982) ............................. 5,6,23,25,35,40

Keyes v. School Dist No. 1, 576 F. Supp. 1503
(D. Colo. 1983) ......................................... 6,7

Keyes v. School Dist No. 1, 609 F. Supp. 1491
(0. Colo. 1985) ............   Passim

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

Keyes v. School Dist No. 1. 670 F. Supp. 1513
(D. Colo. 1987) .................... 1,11,12,24,25,30,42,47

Morales v. Turman, 535 F.2d 864 (5th Cir.
1976) ..................................................... 2

Morgan v. Nucci. 831 F.2d 313 (1st Cir.
1987) .............................................. 42,43,48

N.A.A.C.P. v. Lansing Bd. of Ed.. 559 F.2d 1042
(6th Cir. 1977) .........................................31

New York Tel. Co. v. Communications Workers
of Am. 445 F.2d 39 (2nd Cir. 1971) ....................... 46

Pacific Marine Ass'n v. International.
L.&.W.U. . 517 F.2d 1158 (9th Cir. 1975) ...................46

Pasadena City Bd. of Educ. v. Spangler. 427 U.S.
424 (1976) ............................................ 38,48

S.E.C. v. Jan-Dal Oil & Gas, Inc.. 433 F.2d
304 (10th Cir. 1970) ..................................... 39

Cases Page

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Cases Page

Scandia Down Corp. v. Euroquilt, Inc., 772
F.2d 1423 (7th Cir. 1985) .............................44,45

Swann v. Board of Education, 402 U.S. 1
(1971) ............................................... Passim

System Federation v. Wright. 364 U.S. 642
(1961) ................................................... 39

Taylor v. Board of Education, 288 F.2d 600
(2nd Cir. 1961), .......................................... 2

United States v. Montgomery County Board
of Ed. 395 U.S. 225 (1969) ............................... 32

United States v. Oregon State Medical Soc..
343 U.S. 326 (1952) ................................... 39

United States v. Swift & Co.. 286 U.S.
106 (1932) ...................................  39

United States v. W. T. Grant Co.. 345 U.S. 629
(1953) ................................................... 39

Youngblood v. Board of Public Instruction
of Bay County. 448 F.2d 770 (5th Cir. 1971) ..............42

Other Authorities:
20 U.S.C. S1703(f) ............................................. 6
28 U.S.C. S1292(a)(1) ........................................ 1,2
Colorado Constitution, Article IX, Section 8 ............25,40,41
Rule 65(d) Fed.R.Civ.P......................................... 44

Attachments:
Keyes v. School District No. 1, 540 F.Supp. 399 

(D.Colo. 1982)
Keyes v. School District No. 1. 670 F.Supp. 1513 

(D.Colo. 1987)



JURISDICTION

This case involves an appeal from two orders which have been 
superseded, and an effort by the United States, as amicus. to 
have the court reverse an injunction which has not yet been writ­
ten.1 Appellees submit that the appeal in No. 85-2814 should be 
dismissed for lack of appellate jurisdiction.2 That appeal from 
the Order of June 3, 1985 (609 F.Supp. 149) which declined to 
vacate or modify the 1974 Final Decree, is moot. Battle v. 
Anderson. 708 F.2d 1523, 1527 (10th Cir. 1983). The 1974 Decree 
was superseded by the Order of October 6, 1987 (670 F.Supp. 1513) 
which is the subject of the District's other appeal No. 87-2634.

The Board's appeal of the June 3, 1985 order's refusal to 
declare the District "unitary", is not a permissible 
interlocutory appeal from an injunctive order under 28 U.S.C. 
S1292(a)(l). A refusal to issue a declaratory judgment that a 
defendant has complied with an injunction is not a reviewable 
injunctive order.

1 Space limitation precludes a full reply to the premature 
argument of the United States against the entry of a permanent 
injunction at the conclusion of this case. That injunction does 
not exist, nor do all of the fact findings necessary to a sub­
stantive analysis of the propriety of any permanent order.
Should the Court nevertheless wish to address that issue, we 
request leave to file a supplemental brief on that topic. See 
Amicus Brief at 16-20.
2 Appellees' Motion to dismiss the appeal was denied "without 
prejudice to renewing the jurisdictional issue before the merits 
panel." Order of May 7, 1986.



The appeal from the Order of October 29, 1985 is also mooted 
by the 1987 interim Decree and is also not an appeal from an 
injunction. It merely required the preparation and filing of a 
desegregation plan and was not an injunction under S1292(a)(1).3

STATEMENT OF THE CASE
HISTORY OF THE CASE.

The 1974 Decree. The 1974 Decree incorporated a racially- 
explicit plan of student assignment prepared by a court appointed 
expert.4 On cross-appeals, this court affirmed most provisions 
of the Decree but upheld plaintiffs' argument that certain 
aspects of the plan did not sufficiently integrate the system.5

3 The point was briefed in our memorandum in support of the 
motion to dismiss, pp. 7-11. Taylor v. Board of Education. 288 
F.2d. 600 (2nd Cir. 1961); Hoots v. Commonwealth. 587 F.2d 1340 
(3rd. Cir. 1978); Frederick L. v. Thomas 557 F.2d 373 (3rd Cir. 
1977); Morales v. Turman, 535 F.2d. 864 (5th Cir. 1976). The 
only contrary authority (Board of Pub. Inst, v. Braxton. 326 F.2d 
616 (5th Cir. 1964)) is plainly distinguishable and inapposite 
here where there was never an injunctive order requiring that the 
plan be implemented. See 653 F.Supp. 1536, 1542.
4 Contrary to the Board's description of the Finger Plan as 
"racially neutral", the plan deliberately took account of race to 
promote school integration and to overcome the fact that many mi­
nority pupils lived in segregated neighborhoods. The plan 
changed grade structures to "pair" minority and Anglo schools, 
drew attendance area lines to promote integration, and created 
"satellite" attendance areas to transport pupils away from 
schools in segregated neighborhoods.
5 The rejected portions included the provision for only 
part-time pairing of certain elementary schools and the failure 
to include five predominately Hispanic elementary schools in the 
desegregation plan. Keyes v. School District No. 1. 521 F.2d 
465, 477-79, 479-80 (10th Cir. 1975).



The 1976 Order. On remand the parties agreed to changes in
the plan, the court accepted the stipulation, and the changes 
were implemented in September 1976.® At the Board's request, the 
1976 order provided for a three-year moratorium before any major 
changes of the plan would be considered. The Board acquiesced in 
the exercise of the court's continuing jurisdiction implicit in 
that provision. There was no appeal from the 1976 order.

The 1979 Hearings And Order. As the end of the three-year 
moratorium neared, the district court learned that the Board 
wished to close several elementary schools because of a decline 
in enrollment.7 After a hearing the court permitted the 
requested school closings but rejected the Board's reassignment 
proposals and implemented some of those proposed by plaintiffs. 
The court said:

"Where I have disagreed with the Board's pro­
posal, that disagreement results from the 
belief that the choices which I have made are 
more consistent with movement in the direc­
tion of a unitary system." 474 F.Supp. at 
1272.

The Board did not appeal from the 1979 Order. In fact dur­
ing that period the Board accepted the court's continuing

6 See Order dated March 26,1976, DPS Add. at 22-24.
7 The court ordered the Board to report on the proposed 
changes, which it did through Resolution No. 2060, on May 1, 
1979. Plaintiffs objected that it proposed a pattern of 
assigning Anglo pupils to schools which were already predomi­
nately Anglo, with the converse being true for minority pupils.

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jurisdiction and its conclusion that unitary status had not been 
attained. The Board in May, 1980 appointed the Ad Hoc Committee 
to formulate guidelines for a unitary system and to suggest 
changes in the pupil assignment plan. After that committee's 
final report in June 1981, the Board after further deliberations 
produced a plan which came to be known as the Consensus Plan.

The reasons for a planned major reorganization of the 
schools in the fall of 1982 were the Board's decisions to close 
nine more schools and to reorganize the system's secondary grade 
structure into middle schools with grades 7-8 and high schools 
with grades 9-12.

On the eve of adopting the Consensus Plan Board member 
William Schroeder, an opponent of "forced busing" and proponent 
of neighborhood schools, introduced the Total Access Plan. The 
Total Access Plan offered every pupil freedom of choice and free 
transportation to attend any school in the district without 
regard to residence or location.8 The Board adopted both the 
Total Access and Consensus plans and asked the court to choose 
between them. The court directed the Board to make the policy 
choice.9 The Board then proposed the Total Access Plan, which 
was set for hearing on plaintiffs' objections.

8 The plan also called for a limited number of magnet schools, 
and added some educational embellishments.
9 See Order of November 12, 1981.

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The Hearing On The Total Access Plan - March 1982. Follow­
ing a two-week hearing in March 1982, the court ruled that the
Total Access Plan was completely unacceptable. In its opinion,
540 F.Supp. 399, the court explained why the plan was rejected:

"The probability that the Total Access Plan 
would result in resegregation of schools is a 
fair inference from the facts that most of 
the students would be served by regular 
schools; that the regular schools must be 
equal in the quality of their curriculum; . 
that housing patterns in Denver continue to 
be segregated; and that most families would 
choose to have their children attend the 
closest school.
"In summary, the Total Access Plan was 
lacking in concern, commitment and capacity."
540 F.Supp. at 402.10

The Board filed no appeal. Rather it submitted a modified 
Consensus Plan which was considered in an April 1982 hearing.

Hearing On Consensus Plan And Order Of May 12, 1982. Plain­
tiffs objected to the adverse impact of some proposals on the 
level of integration previously achieved. This impact was caused 
by abolishing some pairings and eliminating some satellite areas 
to create more neighborhood walk-in schools. Plaintiffs 
presented an alternative plan which would have avoided these 
results. The opinion makes clear that acceptance of the 
Consensus Plan was temporary and reluctant:

10 That finding was fully supported, see, e.g.. PX-111, 112, 
113, 164, 167 (1982) as to the effect on elementary schools.



"In this case, I am now accepting the 
modified consensus plan for the single school 
year of 1982-83. I do so with considerable 
reservation because I am not convinced that 
the incumbent school board has shown a com­
mitment to the creation of a unitary school 
system which will have adequate capacity for 
the delivery of educational services without
racial disadvantages......... Acceptance of
this plan for a single school year is not to 
be construed as an abdication of this court's 
authority and responsibility to compel com­
pliance with the desegregation mandate." 540 
F.Supp. at 403.

The Board did not appeal.11
The Ruling On The Language Complaint - December 1983. The

court next considered as an ancillary matter the supplemental
complaint of the plaint iff-intervenors Congress of Hispanic
Educators regarding the failure to provide appropriate education
for limited English language proficiency children. After a two
week trial, the court on December 30, 1983 issued a Memorandum
Opinion and Order On Language Issues, 576 F.Supp. 1503 (D. Colo.
1983). In holding that the District violated plaintiff-
intervenors' rights under 20 U.S.C. S1703(f), the court noted
the interrelationship of the required remedy with desegregation:

In sum, the issues which have been brought 
before the court by the plaint iff-intervenors 
are part and parcel of the mandate to estab­
lish a unitary school system.

11 The Board's pleading at the outset of the 1982 hearings had 
requested a declaration that the district was unitary, and estab­
lishment of a timetable for relinquishment of jurisdiction.



Accordingly, no discrete remedy for these 
issues will now be ordered, but the school 
district has the responsibility for imple­
menting appropriate action as a part of com­
pliance with the mandate to remove the 
effects of past segregative policies and to 
establish a unitary school system in Denver, 
Colorado. 576 F. Supp. at 1521.

*  *  *

A failure to take appropriate action to 
remove language barriers to equal participa­
tion in educational programs is a failure to 
establish a unitary school system." Id. at 
1522.

Once again the Board did not appeal. Subsequently 
plaintiff-intervenors and the Board negotiated a language consent 
Decree, which was accepted by an Order dated August 17, 1984.12

Events Leading Up to The 1984 Hearings. In late 1982 the 
court appointed three expert witnesses (Compliance Assistance 
Panel) to advise the District on how to complete and maintain 
desegregation.13

In the spring of 1983 the Board asked for a one year exten­
sion of the Consensus Plan while it planned assignment revisions. 
On April 15, 1983, the Court granted the one-year extension.1*

12 The remedy, to be phased in over a period of several years, 
was entitled "A Program For Limited English Proficient Students". 
See Add. at 125.
13 See Order To Show Cause Concerning The Appointment Of A Com­
pliance Assistance Panel dated November 2, 1982. Findings, Con­
clusions And Order Appointing Compliance Assistance Panel, dated 
December 16, 1982.
l* See Transcript of April 15, 1983 hearing.

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Resolution 2193, submitted by the Board in support of the
one-year extension, stated in part:

WHEREAS, maintenance of the present Pupil 
Assignment Plan for a period of one year, 
with some modifications therein, will provide 
the necessary stability of assignment and 
time necessary for the Board, the parties and 
the Compliance Assistance Panel, to properly 
evaluate proposals for pupil assignments and 
programs designed to ensure the provision of 
equal educational opportunities; and
WHEREAS, the School District is actively 
engaged in the planning necessary to develop 
appropriate guidelines for Pupil Assignment 
Plans for subsequent years.

In April 1983 the Board voiced no objection to the continu­
ing jurisdiction. Its Hearing Memorandum of April 15, 1983 (PX 
800) reassured the court of the Board's commitment to correct the 
many resegregative effects of the Consensus Plan which were by 
then apparent. However, shortly after the hearing the Board 
secretly determined that it would submit no further plans. 609 
F.Supp. at 1505. To pursue this secret agenda, the Board hired 
new co-counsel and began to assemble evidence to support the 
position that the District already was a unitary system and that 
the court had no authority to continue jurisdiction. Ibid. The 
Board treated the Panel as an "interloper" and rebuffed or 
ignored its efforts. Ibid.

The Board finally revealed this new stance in December,
1983, followed by a motion dated January 19, 1984. This was less 
than 20 days after the court, in the Language Opinion, had ruled



that the District was still not unitary. Nevertheless, the motion 
sought an order:

(1) declaring that the District is unitary as to 
faculty, staff, transportation, extracurricular activities, 
facilities and composition of student body;

(2) modifying and dissolving the injunction as it 
relates to student assignments;

(3) declaring that the previously ordered remedy to 
correct the constitutional violation has been implemented and 
that there is no need for continuing court jurisdiction. The 
District's other motion, to sever the language issues, was 
denied.15

THE PROCEEDINGS BELOW
The 1984 hearings16 concluded on May 23, 1984. On June 3, 

1985 the court issued its Memorandum Opinion And Order, 609 
F.Supp. 1491 (1985).17 That opinion rejected the District's 
claim that it was unitary and denied the request to dissolve all

15 See Order Denying Motion To Sever, dated January 20, 1984.
16 Prior to the commencement of the 1984 hearings, the court 
granted the plaintiffs' motion to incorporate the evidence from 
the 1982 hearings as part of the 1984 record.
17 The Brief implies judicial delay (p. 36), but the delay in 
decision occurred because briefing was deferred by agreement 
through the summer and fall of 1984 as the parties unsuccessfully 
negotiated to settle the case.



pupil assignment injunctions. The court asked the parties to 
renew settlement discussions. 609 F.Supp. 1522. On October 4, 
1985 the parties reported their inability to settle. The court 
then ordered the Board to file a plan dealing with four mat­
ters: 1 a

(1) elimination of the resegregation of Barrett, 
Harrington and Mitchell elementary schools which had been caused 
by the Consensus Plan;

(2) Elimination of abuses in the hardship transfer
policies;

(3) Correction of faculty desegregation practices, 
which had violated the Decree since 1974;

(4) Further details to provide assurances that future 
school construction, utilization and planning decisions would not 
reestablish the dual system.

The Board appealed from the October 1985 order and the 
June 1985 opinion and order.

The Board's response to the October 1985 order was a plan 
which was considered at a three day hearing in March 1986. The 
court ruled that the Board could proceed with its plans in 
September 1986 pending a written opinion, which was filed on 
February 25, 1987. 653 F.Supp. 1536. Since the District had

18 Order For Further Proceedings of October 29, 1985. D.P.S. 
Brief, Attachment.



chosen various subtle and untested methods to integrate the three 
elementary schools through voluntary integration the court ruled 
that it would await the results before making any final determi­
nation. The court said that the Board should return to court 
when it could demonstrate that its proposals had been implemented 
and were effective. Plaintiffs' requests for further injunctive 
relief were rejected, reserving them for further consideration if 
the Board's plans proved ineffective. Id. at 1540.

The opinion also said that in the interim pending the 
Board’s further presentation of evidence judicial supervision 
over the district would be reduced by eliminating provisions 
requiring prior court approval before changing pupil assignments 
and school utilization. As many of the 1974 Decree's provisions 
were outdated they should be eliminated or updated. The court's 
plan was to relinquish jurisdiction of the case and enter a per­
manent injunction when the Board proved the effectiveness of its 
plans. Id. at 1540-41.

The court next considered the parties' positions on the 
form of the amended injunction. They took strikingly different 
approaches to the interim order. The Board wanted specific 
detailed requirements and continuation of pre-approved pupil 
assignment and related plan changes. The Board suggested that 
the court fix a specific racial percentage guideline which would 
trigger the need for prior court approval.19 The Board made

1 9 670 F. Supp. 1513 at 1515.



vagueness objections to plaintiffs' attempts to formulate princi­
ples to govern the Board's conduct without the need for prior 
court approval.20 Plaintiffs' suggestions were based on language 
in the Supreme Court's Swann decision to give the Board substan­
tive guidance about making plan changes without pre-clearance.21

The interim Decree was issued, Memorandum Opinion and Order, 
dated October 6, 1987, 670 F.Supp.1513. The court noted that the 
interim Decree, "removes obsolete provisions of existing orders, 
relinquishes reporting requirements, and eliminates the need for 
prior court approval before making changes in the District's 
policies, practices and programs." 670 F.Supp. at 1515. Such 
pre-approval was supposedly the Board's greatest objection to 
continuing jurisdiction and the impetus for seeking relinquish­
ment.22 The order supersedes all prior injunctions in the case 
including the 1974 Decree. 670 F. Supp. at 1517. The Board is 
no longer obliged to follow the Finger Plan or any particular 
plan of pupil assignment. Rather the Board is directed to 
achieve and maintain desegregation under the Decree's principles. 
The Board's second appeal, (No. 87-2634) followed.

20 670 F. Supp. at 1515-16.
21 Swann v. Board of Education. 402 U.S. 1 (1971). The plain­
tiffs' proposals were based on Part V of the Swann Opinion par­
ticularly the language at 402 U.S. 26.
22 See 609 F. Supp. at 1517-18.

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At a subsequent status conference about the hearing at which 
the Board will show the results of its plan, the court scheduled 
the hearing for after school opens in the fall of 1988. In fall 
1988 the District will implement a new grade structure, whereby 
all sixth graders will be assigned to middle schools rather than 
elementary schools and third graders in paired schools will be 
shifted to the school containing grades four and five. 23 If 
the Board makes a satisfactory showing, the court plans to 
formulate a permanent injunction and end active jurisdiction. 2<f

RESTATEMENT OF FACTS
Our summary of evidence concentrates on four reasons the 

Court held that the District was not unitary: (1) the Board's 
resegregation of three elementary schools, (2) abuse of the 
parent-initiated pupil transfer policy, (3) building utilization, 
construction and abandonment, and (4) faculty integration.25

The History Of Integration And Reseqreqation At Barrett. 
Harrington And Mitchell Elementary Schools. Barrett, Harrington 
and Mitchell elementary schools were virtually all-black when the

23 A report showing that the changes will be implemented at the 
beginning of the 1988-89 school year, and providing projections 
as to the results as to school enrollments, was filed on May 12, 
1988.
21* 653 F. Supp. at 1541-42. See Transcript of Pretrial Confer­
ence, November 13, 1987, Add. at 154-168.
25 Order for Further Proceedings, Oct. 29, 1985 at pp. 1-2.



case began in 1969. They are located in Denver's black ghetto. 
Barrett was deliberately located, and its zone gerrymandered, to 
make it segregated. Mitchell and Harrington are nearby in the 
core city area.26

These schools were desegregated by pairing with Anglo 
schools in 1976.27 These 1976 arrangements continued (with minor 
changes in 1979) through the 1981-82 school year. During this 
time Barrett and Harrington remained successfully integrated, and 
Mitchell —  with a 22.5% Anglo student body was only slightly 
below the plan's target range.

The implementation of the Consensus Plan in 1982 changed 
these three schools back to heavily minority schools. (PX 610, 
cf. PX 2155) The Board advanced no educational justification for 
these changes. By 1984 these schools had the smallest Anglo per­
centages in the system. PX 2110.

Barrett. The Consensus Plan changed Barrett from 43% Anglo 
in 1981 to 22.8% in 1982. Under the Plan the predominately white 
satellites were removed from Barrett. Knight became a magnet 
school and was no longer paired with Barrett. Barrett received a

26 The Supreme Court opinion contains a map showing the loca­
tion of these schools, and summarizes Judge Doyle's findings. 
Keyes v. School District No. 1.. 413 U.S. 189 (1973).
27 Barrett was paired with Knight; it also received pupils from 
a predominately-white satellite area. Harrington was paired with 
Ellis. Mitchell, the largest minority school, was in a triad 
with Denison and Force.



new pair, Cory. Before implementation the Board had projected 
the 1982 enrollment at Barrett to be 37% Anglo. (PX 735) Subse­
quently the Anglo enrollment drifted lower: 18% in 1983, 13.5%
in 1984 and 16% in 1985.28

Harrington. The Consensus Plan changed Harrington from 26% 
Anglo in 1981 to 15.5% in 1982. Under the Plan predominately- 
minority Wyatt school was closed and its children reassigned to 
Mitchell and Harrington, while a portion of Harrington was 
assigned to Smith. Subsequently the Anglo enrollment remained 
low:14.9% in 1983; 16.2% in 1984 and 19.5% in 1985.

Mitchell. The Consensus Plan changed Mitchell from 22.5% 
Anglo in 1981 to 17% in 1982. Under the Plan, Denison was 
removed from the triad and closed. Most of its predominately 
white pupils were reassigned to Doull which was removed from the 
plan and became a K-6, walk-in predominantly white neighborhood 
school. The rest of the Denison pupils were reassigned to the 
new Mitchell-Force pair. Anglo enrollment at Mitchell was 15.8% 
in 1983, 16.7% in 1984 and 16.9% in 1985. The Plan changed Force 
to a 22.7% Anglo school, down from 33.5% in 1981.

The court found that it was the Consensus Plan effort to 
reduce "forced busing" which resegregated the three schools:

28 The enrollment history of Barrett, Harrington and Mitchell 
is detailed in PX 2100. Anglo percentages in the text exclude 
kindergarten. See PX 2130 for 1985 elementary enrollments.



The evidence now before the court shows that 
the plaintiffs' objections and the court's 
concerns about the Consensus Plan were well 
founded. Barrett and Harrington have become 
racially identifiable schools, . . . Mitchell 
fell from 22.5% to 12% Anglo. 609 F.Supp. at 
1507. [12.8% in 1982, includes kindergarten.
PX-2100]

After hearing an extensive factual presentation, the court
expressly found against the District's claim that these three
schools had become resegregated because of population movements.
The court analyzed a "vast array of statistical data and expert
opinion" before finding against the District's contention:

"This court is not persuaded that demographic 
change is the reason for the development of 
racial imbalance in the schools." 609 
F.Supp. at 1508. See also id. at 1517.

In its 1986 opinion, the court reiterated that: " . . .  the 
Consensus Plan had resegregative effects on Barrett, Harrington 
and Mitchell schools." 653 F.Supp. at 1540.29 The history of 
these schools, set out in PX-2100 at the 1986 hearing, was undis­
puted; the court's resolution of the dispute over the cause of 
the resegregation and rejection of the Board's "white flight" 
explanation was supported by credible evidence.30

29 In the Order for Further Proceedings, but not in its 1985 
opinion, the court had erroneously stated that Barrett and 
Mitchell had never been integrated; the error was recognized and 
corrected in the 1986 opinion, 653 F.Supp. at 1540, fn 1.
30 PX-2100. Testimony as to cause was presented through 
Drs. Bardwell and Stolee at the 1984 and 1986 hearings. See 
Stolee 1986 R.Vol. Ill at 193; Bardwell re PX-2100 at Id., 
131-33.



Remedial Proposals For Barrett, Mitchell and Harrington.
The components of the Board's proposals which were implemented in 
fall 1986 are set out in DX-B(86), D.P.S. Add. at 193-214.31 
The Board eschewed any changes of Consensus Plan zoning or 
pairings to increase integration at the three schools. It 
asserted that the schools could be integrated by using various 
subtle techniques to influence Anglos to attend these ghetto 
schools. One method was simply improving the physical facilities 
and appearance of the three schools (including planting grass, 
carpeting, painting and maintenance) to make them comparable to 
Anglo schools and thus attractive to the Anglos who, it was 
hoped, would volunteer to attend. Ld. at 198, 208, 212.

Equally revealing was the fact that a major element of the 
Board's own plan was to require Anglo pupils who lived in the 
zones of these schools to actually attend them by stopping the 
abuses of the parent-initiated pupil transfer program by which 
many white children transferred out to Anglo schools under liber­
ally granted "baby-sitting" excuses. The plan for each school 
was for "Implementation of the [new] adopted transfer policy and 
the monitoring of transfers to insure that they do not have a

31 Through Dr. Stolee, plaintiffs presented plans based upon 
mandatory reassignments to restore integration at the three 
schools. See PX-2030, pp.3-6, the offer of the mandatory plans 
at 1986 R. Vol. Ill at 204-05, and on cross-examination, Ld. at 
209-12. The court found that these proposals could "easily" 
remedy the problem. 653 F. Supp. at 1540.



negative impact on the racial composition of the school." D.P.S. 
Add. at pp. 204, 209 and 212.

By such other measures as enhanced educational programs at 
Barrett and Harrington and the adoption of a one-grade-a-year 
plan to establish a Montessori school at Mitchell,32 the Board' 
plan proposed to control the racial composition of the three 
schools and restore integration without mandatory assignment 
changes.

The court allowed the implementation of these plans to see
if they would prove to be effective:

"This court cannot determine the effec­
tiveness of the programs for increasing the 
Anglo population at Barrett, Harrington and 
Mitchell Schools from the evidence at the 
March, 1986 hearing. . . .  It is precisely 
because the Board has selected the more 
subtle methods for inducing change that this 
court must retain jurisdiction to be certain 
that those methods are effective." 653 
F.Supp. at 1539, 1540.

This record does not indicate the results of the imple­
mentation of the Board's plan in 1986 and 1987. The 1988 fall 
hearing will consider that as well as the change of the transfer 
policy discussed below.

32 The Montessori program called for the establishment of pre­
kindergarten and kindergarten in 1986, and a grade a year there­
after. Thus implementation will not be complete (grades pre-K 
through 5), until 1991. As each Montessori grade is established 
at Mitchell, the pupils in that neighborhood who do not elect to 
participate are assigned to Force. There was concern expressed 
through plaintiffs' evidence that the plan would cause Force to 
become segregated. No remedy for this problem has been put in 
place. See Stolee, 1986 R.Vol. Ill, at 200-01.



The Reseqreqative Effect Of The Baby-Sitter Transfer Policy.
The Board's policy allowing parent-initiated transfers has been 
in effect since 1974, but first came under scrutiny at the 1982 
hearing. 33 Under the policy elementary pupils could change 
their school of assignment simply by retaining a baby-sitter 
within the attendance area of the school of their choice; at the 
secondary level the vehicle was the location of after-school 
jobs. The District made no effort to determine the effects of 
individual transfer requests upon the transferee or transferor 
school, or to prevent use of transfers to thwart desegregation. 
609 F.Supp. at 1512, 1514. After reviewing plaintiff's study of 
the transfers' effects at the 1984 hearing3*' the court concluded;

33 At the 1982 hearing, plaintiffs were only able to demon­
strate possible adverse impacts at Mitchell. PX-330 (1982). The 
state of the "records" of transfers was described by Martha 
Nelson, 1982 R.Vol. 19 at 119-122. The lack of monitoring or 
analysis was admitted, Id. at 122-23, as was the ease in picking 
the transferee school by finding a sitter in that area, .Id. at 
125. Similar manipulation was available at the secondary level 
through selection of the location of after-school jobs. .Id. at 
125-27. See also PX-110 (1982), showing that hardship and 
babysitting accounted for 212 of 352 children excused from 
satellite areas.
34 At the 1984 hearing plaintiffs demonstrated that in the 
single school year 1983 transfers had substantially affected 
Anglo percentages in seventeen elementary schools, including 
Barrett, Harrington and Mitchell. PX-720, 730 (1984). Of the 12 
schools whose Anglo enrollment had dropped due to transfers, all 
were former minority schools. Ibid. See Bardwell, 1984
R.Vol. 13, at 1148-59; Stolee, 1984 R.Vol. 14 at 1230-33.

The 1974 Decree appears at D.P.S. Add. at 1-17. Paragraph 8 
of the Decree provided that parent requested transfers, when fea­
sible, "shall be made to improve integration at the transferee



"Yet the fact that the schools with the 
largest net changes are the schools which 
have historically been the racially 
identifiable schools is some evidence that 
for those schools the hardship transfer may 
have been used to avoid the desegregation 
plan.
The District has done the minimum required in 
keeping records and maintaining the policy 
that it would refuse a transfer if the 
express reason given was "race". The dis­
trict has failed to monitor the system-wide 
effect of the transfers, leaving the decision 
to the principal of the receiving school. In 
fact, prior to the 1982 hearing, no record of 
ethnicity was kept in the central card filing 
system. The plaintiffs’ analysis of 1983-84 
transfer data appears to be the first such 
system-wide analysis, and it does reveal that 
the effects of such transfers in certain 
schools are significant and are contributing 
to the racial identification of those 
schools. In addition, the schools affected 
are some of the schools initially at issue in 
this lawsuit." 609 F. Supp. at 1513-14.

(Footnote Continued)
school," and required record-keeping. Add. at 6. In paragraph 
18(9), semiannual reports on transfers were required. The spirit 
if not the letter of these requirements were violated. 1984 
R.Vol. 14, Stolee at 1233. The president of the Denver P.T.A. 
testified as to the demoralizing effect of these transfer abuses 
upon the parents whose children complied with the Decree. Ruckle, 
1984 R.Vol. 18 at 155-56.

Martha Nelson, who continued to administer the program in 
1984 (and in 1985 as well), testified that despite the potential 
for abuse and the inadequacies disclosed at the 1982 hearing, 
there had been no substantive change in the policy or record­
keeping. Transfers were still not assessed as to their 
segregative effect. No transfer request had ever been rejected 
due to its segregative effect. 1984 R.Vol. 18 at 211-219.



At the 1986 Hearing the Board finally presented a revised 
transfer policy and promised to allow transfers only in cases of 
genuine necessity. See DX-D(86), D.P.S. Add. at 215-18. Imple­
mentation of the new policy was to be for the 1986-87 school 
year.35 The Superintendent stated that this tightening of the 
policy was an important component of improving Anglo enrollments 
at Barrett, Mitchell and Harrington; this admission was confirmed 
by the schools' principals who testified as to their individual­
ized efforts to recapture Anglo families abusing the system.36

Plaintiffs' evidence showed the continuing adverse impacts 
upon the desegregation program.37 Over 10% of all elementary 
pupils (2,869 children) were avoiding attending their schools of 
assignment under the desegregation plan.38

35 Superintendent Scamman admitted that the data base available 
to Mrs. Nelson was inadequate to measure the cumulative effect of 
transfers in the 1985-86 school year. 1986 R.Vol. I at 107-08. 
Details of the policy's application to transfers based upon 
academic programs were unknown. M. at 99-103. Monitoring and 
analysis of transfers would not be in place until the 1986-87 
school year. Id. at 40-41.
36 Dr. Scamman's testimony appears in 1986 R.Vol. I at 65-66, 
133-34, 141-42. That of Barrett principal Hazzard, _Id. at 184, 
197-201; of Harrington principal Santorno, Id. at 231-32, 252; of 
Mitchell principal Urioste, 1986 R.Vol. II at 42-46,55-56.
37 See Bardwell, 1986 R.Vol. Ill at 119-30, PX-2176,2095; 
Stolee, Id. at 168-85, PX-2035, 2041, 2055, 2060, 2065. The list 
of schools whose Anglo enrollment had been significantly affected 
had grown to 40; of those, 29 were moved farther away from the 
district-wide average due to transfers. Dr. Stolee concluded 
that these transfers were having a segregative effect. Id. at 182 
83.
38 The percentage was even higher for Anglo elementary pupils. 
1986 R.Vol. Ill at 119-20 (Bardwell) PX-2176, p.4. Barrett and



The court credited this evidence,39 and noted that the new 
policy was focused only on the impact of the transfer at the 
receiving school, and concluded that, "only carefully monitored 
implementation of [the new policy] will indicate whether it 
effectively prevents circumvention of the pupil assignment plan." 
While the court concluded that, "the defendants have not demon­
strated that the new transfer policy . . . will produce the 
required results," implementation was nevertheless allowed to 
determine whether it would work. 653 F.Supp. at 1540, 1542.

Evidence Relating To Building Utilization. School Construc­
tion And Abandonment And Pupil Assignment Practices. Here we 
focus on the evidence underlying the court's concern that the 
District's policies and practices relating to building 
utilization, school construction, the closing of schools and 
pupil assignment might result in resegregation of the schools. 
This concern was rooted in the history of the violation in this 
case, where these policies and practices were found to have been 
the tools for intentional segregation.

(Footnote Continued)
Mitchell remained among those minority schools with the largest 
declines in Anglo enrollment due to transfers. Id. at 127-28, 
PX-2095.
39 See 653 F.Supp. at 1538.

-22-



The evidence throughout the remedial phases of the case 
reflects the fact that the black ghetto upon which the District 
built its segregated system still remains intact today.40

As detailed above, in three successive presentations to the 
court, the Board failed to demonstrate that it would use its 
policies of school utilization and abandonment to advance or pre­
serve desegregation. Its 1979 proposals were rejected, as was 
the "irresponsible” Total Access Plan in 1982. 653 F.Supp. at
1540. The Consensus Plan was accepted only temporarily and 
reluctantly. 540 F. Supp. at 403. Less resegregative alterna­
tives were available.41

Seeing these continued failures, the court appointed the 
Compliance Assistance Panel to assist the Board in developing 
plans and policies to assure the establishment and maintenance of 
a desegregated system. However, the Board, during the spring and 
sxammer of 1983 turned its back on this assistance.

Instead, the Board declared that the District was already 
unitary and attempted to set forth its future commitment to main­
taining integration in Resolution 2233. Resolution 2233 was

40 See 653 F.Supp. 1536, 1541. While blacks and Hispanics have 
moved to some extent into formerly all-white neighborhoods, a 
corresponding migration of whites into the ghetto has not 
occurred, and they remain unchanged in their concentrations of 
minority families. See also 609 F.Supp. at 1519, 1520.
41 See Stolee, 1982 R. Vol. 15 at 1-62.



passed by the Board on the eve of the 1984 hearing seeking a dec­
laration of unitary status.42 The Resolution was a document pre­
pared by lawyers for the litigation; it was based on no input 
from the staff and little input from the Board.43 It was obvi­
ously meant to track the resolution which the Ninth Circuit had 
found convincing in the Spangler case.44

At the hearing the plaintiffs' evidence was that the resolu­
tion was too vague to be meaningful,45 and it implied a program 
the ultimate objective of which would be a return to neigh­
borhood, segregated schools.46 Despite misgivings the court 
accepted Resolution 2233 as official Board policy, (653 F.Supp. 
at 1540) and determined to let them prove its bona fides by their 
actions under relaxed judicial supervision. See 670 F.Supp.1513, 
1516:

42 DX C-6, DPS Add. at 171.
43 Testimony of Board member Mullen, 1984 R.Vol. 15 at 1268.
44 See discussion 609 F.Supp. at 1514, 1518-1520.
45 See testimony of Dr. Willie, 1984 R.Vol. 21 at 51-58.
46 609 F.Supp. at 1520; see testimony of Dr. Hawley, 1984 
R.Vol. 20 at 381-93. In reviewing PX-845 (1984), he noted a sim­
ilarity between the Consensus Plan's approach and the approach of 
Resolution 2233.

See also Schomp, 1984 R.Vol. 18 at 114; Mullen, 1984 
R.Vol. 15 at 1269-75; Schroeder, .Id. at 1305; the day he voted 
for Resolution 2233, Mr. Schroeder on a radio talk show agreed 
that school integration was "unconstitutional", PX 880 (tape 
recording), 1984 R.Vol. 21 at 21, and that anyone who mandated 
. . . that your child must really have to go across town was out­
rageous. Id. at 24.



"What the District does in the operation of 
its schools will control over what the Board 
says in its resolutions."

Colorado Constitution "Anti-busing" Amendment. In its 1985 
opinion the court recognized that even the best intentions under 
Resolution 2233 would be nullified unless Colorado's "anti­
busing" amendment was permanently enjoined.lf7 See 609 F.Supp. at 
1518. Maintenance of integration in Denver without busing would 
be impossible:

The total return to neighborhood schools 
throughout the system under the residential 
patterns which have existed and now exist 
would inevitably result in the resegregation 
of some schools particularly at the elemen­
tary level." Id. at 1519.*8

The interim Decree, 670 F.Supp. at 1517, enjoins the amend­
ment in paragraph 8.

*7 The 1974 Amendment is Colo. Const. Art.IX, § 8:
No sectarian tenets or doctrines shall ever ■ 
be taught in the public school, nor shall any 
distinction or classification of pupils be 
made on account of race or color, nor shall 
any pupil be assigned or transported to any 
public educational institution for the pur­
pose of achieving racial balance. (Emphasis 
added).

This provision would even prohibit transportation for the 
voluntary integration efforts purportedly supported by the Board.
*8 This conclusion was clearly supported by the plaintiffs' 
"nearest school" evidence introduced in opposition to the Total 
Access Plan in the 1982 hearings, PX-111, 112, 113, 167 (1982) 
and credited by the court, 540 F.Supp. at 402.



Faculty Segregation and Desegregation. In the June 1985
Opinion Judge Matsch found that the District had never complied 
with paragraph 19A of the 1974 Decree regarding faculty assign­
ments. 609 F.Supp. at 1508-1512. Rather the District had 
"adopted the interpretation which requires the fewest minority 
teachers in schools which previously had a predominantly Anglo 
faculty". Id. at 1509. Thus the District had perpetuated the 
old pattern and failed "to remedy, as much as possible, the prior 
practice of assigning Black teachers to Black schools as 'role 
models'." Id. at 1510. (PX 710) Judge Matsch found the Dis­
trict never adopted guidelines for determining when minority 
schools had too many minority teachers. 609 F.Supp. at 1510. 
Judge Matsch's review of the evidence resulted in a finding that:

The schools with a high percentage of minor­
ity teachers are, in large part, the same 
Park Hill and core city schools identified by 
the Supreme Court in Keyes. 413 U.S. at 
192-193 nn. 3,4 . . .. Comparing the loca­
tion of the listed school with its percentage 
of minority teachers and the minority resi­
dential patterns in Denver, reflected in the 
census data maps submitted by the District, 
it appears that the concentration of minority 
teachers in the schools is correlated to mi­
nority residential patterns. 609 F.Supp. at 
1511.

The District had retained its "neighborhood teacher policy."
After reviewing the extensive evidence and testimony 

presented by plaintiffs on faculty assignment patterns,*9 and

The findings are supported by substantial testimony and 
exhibits. See Dr. Stolee, 1984 Vol. 14 at 1233; Dr. Bardwell,



after rejecting the District's arguments on the subject as being 
made "somewhat disingenuously" (.Id. at 1510), the court con­
cluded:

From the totality of the evidence, this court 
finds that the District has tended to inter­
pret the Decree's mandate for minimum per­
centages of minority teachers as the maximum 
for schools with large Anglo enrollments and 
has failed to place any maximum minority per­
centages for the schools with large minority 
pupil populations. The conclusion is that 
there is a sufficient residue of segregation 
in faculty assignments to deny a finding that 
the District has been desegregated in that 
respect. 609 F.Supp. at 1512.

ARGUMENT50
I. The findings and record abundantly support the injunctions 
in effect from 1976 until October 1987 and the retention of 
jurisdiction during that period.

A. The Board's arguments about the previous injunctions 
are without merit because of mootness, untimeliness and waiver or 
acquiescence. The Board argues that since 1976, the court has

(Footnote Continued)
1984 Vol. 13. at 1116, 1126, 1129 (PX 711), 1135, 1137-1139, 1146 
(PX 719). See Dr. Willie, 1984 Vol. 21 at 44-51. See also 
PX 685, 700, 705, 718, 719 (1984).

Standard of Review: District courts in school desegregation
cases have broad discretion under traditional equity principles 
to formulate injunctions and retain jurisdiction. Swann v. Board 
of Education. 402 U.S. 1, 15-18 (1972). Abuse of discretion is 
the standard of review. Battle v. Anderson. 708 F.2d 1523, 1539 
(10th Cir. 1983). See infra. Argument 1(G). Fact findings are 
reviewed under the "clearly erroneous standard." Review of legal 
conclusions is plenary.

-27-



had no power to enter injunctive orders or to retain jurisdic­
tion, because a court-ordered desegregation plan was implemented 
in September 1976. The Board's complaints about the injunctions 
in effect before October 6, 1987, which have now been superseded, 
are moot. The complaint about retention of jurisdiction under 
the earlier orders is also moot, as the current relaxed judicial 
supervision is different from that prior to October 6, 1987.

The Board's complaints about the 1987 injunction and 
retained jurisdiction remain for consideration. We answer the 
attacks on the moot orders in detail because findings and argu­
ments supporting those orders also support the 1987 Decree.

There are two other procedural bars to the Board arguments, 
e.q. timeliness and waiver or acquiescence. The complaints that 
the court erred by continuing to issue injunctions in 1979, and 
1982 are untimely. There were no timely appeals when those 
injunctions issued. The Board did not discover or assert its 
position until years later.

By its conduct from 1976 through 1983 the Board acquiesced 
in the court's continuing jurisdiction. Principles of waiver and 
estoppel should preclude the Board from complaining about juris­
diction which was retained at the Board's own request and to 
serve its purposes. The three-year moratorium on changes in the 
plan —  approved at the board's suggestion —  necessitated con­
tinuing jurisdiction from 1976 to 1979. If the Board had wanted



termination of jurisdiction in the fall of 1976 it could have 
reported the plan results to the court and sought a hearing. 
Instead the Board sought a three year delay because it could 
thereby avoid the risk that the court would find the plan inade­
quate and order changes. From 1979 to 1981 the Board made no 
request that the court's supervision be ended. Instead the court 
was led to await the work product of the Ad Hoc Committee which 
was charged to develop guidelines and long term plans for a 
unitary system. Even in April 1983 (after rejection of the Total 
Access Plan and the one-year approval of the Consensus Plan) the 
Board obtained a one year extension of the Consensus Plan by rep­
resenting in a pleading that it would cooperate with the Compli­
ance Assistance Panel and prepare a plan to satisfy the Court's 
reservations about the Consensus Plan. Thus from 1976 through 
1983 the defendants never raised the present claim (advanced for 
the first time in early 1984) that the entire remedial proceeding 
since 1976 has been ultra vires. The court was entitled to prem­
ise its 1985 orders on earlier orders (such as the 1982 order) 
which had never been challenged or appealed by defendants. The 
Board misplaces the blame in accusing the court of a "bootstrap 
theory of federal judicial power" (Brief at 18) where the Board 
did not challenge or appeal the earlier exercises of that power.

When the court addressed unitariness in the June 1985 opin­
ion it set forth several solid grounds for rejecting the Board's



position. Two of the most significant grounds relied on by the 
trial judge are not even challenged on appeal. The Board's brief 
concedes the validity of the court's findings "regarding teacher 
assignment and hardship transfers". Brief, p.2,n.5. This 
concession is also a waiver by the Board, and the concession is 
fatal to the Board's entire argument against the pre-1987 injunc­
tions and retained jurisdiction. The Brief requests a remand for 
the court to consider whether there was "good faith imple­
mentation," whereas the appropriate review is as to the effec­
tiveness of the Board's 1986 plan. Brief p.36, 49. But an 
appeal for that remand is entirely superfluous because the court 
has already repeatedly stated his plan to conduct that hearing on 
effectiveness when the Board is ready to make the required 
showing. See 653 F.Supp. at 1540; 670 F.Supp. at 1515; Tr. 
Pretrial Conf. Nov. 13, 1987, Add. at 154-168.

B. The findings of transfer abuses supported injunctive 
relief and retained jurisdiction. The court's finding that the 
Board permitted parents to abuse the "babysitting" transfer 
option to undermine the desegregation plan at racially 
identifiable minority schools which were involved in the original 
violation provides a solid basis for continued injunctive relief 
and equitable jurisdiction. The Board allowed ten percent of all 
elementary children to transfer without any control to prevent 
transfers from defeating the desegregation plan. The Board's own



presentation in 1986 made it clear that preventing abuse of the 
transfer device could go a long way toward integrating Barrett, 
Mitchell and Harrington schools.

The Board argues as if these transfers were entirely 
unrelated to "pupil assignments." But transfers are "pupil 
assignments" approved by school authorities. The findings of 
significant transfer abuses which undermined the desegregation 
plan provided a solid basis for the 1985 orders.51

C. The findings on faculty segregation supported 
injunctive relief and retained jurisdiction. The finding that 
the Board had violated the faculty desegregation order since 1974 
also supports the 1985 orders. The Board argues the case as if 
faculty assignments had no relation to or effect on pupil assign­
ments. In Denver the Board's pupil assignment rules which per­
mit children to choose their schools (e.g. magnet programs, 
transfer options) provide a special reason why schools must not 
be racially identifiable by the race of their faculties. The 
Board's continuing unlawful practice of assigning faculties to 
correlate with residential segregation patterns and the historic 
racial identification of the schools, (609 F.Supp. at 1511), had

51 Columbus Bd. of Ed. v. Penick. 443 U.S. 449, 461 (1979); 
Dayton Bd. of Ed. v. Brinkman. 443 U.S. 526, 535 (1979); Adams v. 
United States, 620 F.2d 1277, 1290 (8th Cir.), cert, denied. 449 
U.S. 826 (1980); N.A.A.C.P. v. Lansing Bd. of Ed.. 559 F.2d 1042, 
1050-51 (6th Cir. 1977).

-31-



the obvious potential to influence Anglo acceptance of the paired 
school and pupil choices about those schools. At Barrett, 
Harrington and Mitchell Anglos would not be persuaded if black 
teachers were still concentrated there as role models for black 
pupils. The purpose of faculty integration is to assure that 
Denver operates "just schools" and not "white schools" or "black 
schools." Swann, supra, 402 U.S. at 18; United States v. 
Montgomery County Board of Ed., 395 U.S. 225 (1969); Green v. 
School Board. 391 U.S. 430, 442 (1968). Here faculty integration 
is so closely related to the pupils that it could not be error 
for the court to retain jurisdiction of. pupil assignment issues 
when it found the faculty order had been violated for a decade.

D. The duty to prevent re-establishment of the dual system
by construction and abandonment policies supports the retention
of jurisdiction. The trial judge found another basis to reject
the Board's argument that the 1976 order completed the remedy.
He ruled (609 F.Supp. at 1506) that the 1974 and 1976 orders had
failed to provide a mechanism to address a specific command of
the Supreme Court in Swann:

In devising remedies where legally imposed 
segregation has been established, it is the 
responsibility of local authorities and dis­
trict courts to see to it that future school 
construction and abandonment are not used and 
do not serve to perpetuate or re-establish 
the dual system. When necessary, district 
courts should retain jurisdiction to assure 
that these responsibilities are carried out.
402 U.S. 1, 21 (emphasis added below).



The quoted language concluded an important discussion in 
Swann which emphasized that decisions about construction and 
utilization, "when combined with one technique or another of stu­
dent assignment, will determine the racial composition of the 
student body in each school in the system." 402 U.S. at 20.
Judge Matsch has always kept in mind that official decisions made 
by school authorities ultimately control the racial composition 
of the schools. The 1985 opinion held that the Board had failed 
to adopt adequate programs and policies to insure that these 
decisions about school utilization would not re-establish segre­
gation. 609 F.Supp. at 1506, 1514-21. The court cites Battle v. 
Anderson. 708 F.2d.1523, 1538 (10th Cir. 1983), cert, dismissed. 
465 U.S. 1014 (1984), which cites Green v. County School Board. 
391 U.S. 430 (1968) as precedent for the duty to exercise super­
visory power "until it can say with assurance that the unconsti­
tutional practices have been discontinued and that there is no 
reasonable expectation that unconstitutional practices will
recur. n 5 2

E. The finding that the Consensus Plan needlessly 
reseqreqated Barrett, Mitchell and Harrington supported the 1985

The February 1987 opinion cites this Court's recent language 
that "the purpose of court-ordered school integration is not only 
to achieve, but also to maintain a unitary school system."
Dowell v. Board of Education. 795 F.2d 1516, 1520, cert, denied. 
___ U.S. ___ (1986). Keyes. supra. 653 F.Supp. at 541.

-33-



orders. The court ordered the Board to devise new plans for 
these three schools because it found that they had been need­
lessly resegregated by the Board in 1982. The Court held that 
its prior reluctant and temporary approval of the Consensus Plan 
was a mistake and that plaintiffs' objections had been correct. 
Plaintiffs demonstrated that it was feasible to maintain integra­
tion at the three schools with their own proposals at the 1982, 
1984 and 1986 hearings. The Board presented no justification for 
the zoning and pairing changes that resegregated them except its 
preference for "walk in” schools and opposition to "forced 
busing." The decision to require new plans fulfilled the obliga­
tion to achieve "the greatest possible degree of actual 
desegregation, taking into account the practicalities of the sit­
uation." Davis v. School Commissioners of Mobile. 402 U.S. 33,
37 (1971); Swann, supra 402 U.S. at 26.

The court found it unnecessary to decide plaintiffs' conten­
tion that the Consensus Plan showed "segregative intent" by 
defendants. 609 F.Supp. at 1507. The defendants have no valid 
complaint that the court did not reach this question but instead 
evaluated the effectiveness of the Consensus Plan under the 
affirmative duty standards of the Swann and Davis. See Dayton 
Board of Ed.. supra. 443 U.S. at 538 (Dayton II) and Columbus 
Board of Ed.. supra; "Each. . .failure to fulfill the affirma­
tive duty [violates]. . .the Fourteenth Amendment." 443 U.S. at



Further relief for the three schools was also supported by 
the uncontested findings of transfer abuses for which the Dis­
trict was fully responsible. These abuses significantly contrib­
uted to the racial isolation of these schools by allowing Anglos 
to move from Mitchell, Barrett and Harrington to Anglo schools. 
653 F.Supp. at 1538; PX 2030, PX 2095, PX 2060.

The Board's brief attacks a "straw man" by attributing to 
the court a purpose to correct racial imbalance resulting from 
demographic changes for which the Board had no responsibility.
The trial judge found otherwise.53 609 F. Supp. at 1508, 1517. 
The court's order required relief only to repair damage done by 
the Consensus Plan. The Board's argument ignores the court's 
explicit findings which rejected the Board's contention that 
"demographic changes" were the cause. Id.

Moreover, the Board's claim about "demographic changes" is 
fatally undermined by its own 1986 evidence that these three 
schools could be much more integrated without any use of manda­
tory means by stopping transfer abuses, and by improving their

53 The court has repeatedly stated it would not require any 
particular racial balance or percentage and recognized the hold­
ing of Swann on that point. See 474 F.Supp. at 1269; 540 F.Supp. 
at 402; 609 F.Supp. at 1521. The District's schools have a wide 
range of racial compositions. In 1983 (the year considered by 
the opinion) there were actually six schools between 10 and 19% 
Anglo. PX. 671, 650. The Consensus Plan created a number of 
other racially identifiable schools. Compare PX-164 (1982) with 
PX-631 (1984).

-35-



comparability, making them more appealing to the Anglo pupils who 
lived in their zones.

F. The need to avoid conflict between desegregation reme­
dies and the language consent decree supports the retention of 
jurisdiction during implementation of the language plan. Nothing 
in the Board's brief challenges the need of the court to retain 
jurisdiction during implementation of the language consent 
decree. This appeal does not affect the District's obligations 
under that decree, or present any issue about how long jurisdic­
tion of the language issues should be retained.

However, the language decree does support retained jurisdic­
tion of desegregation issues. The court below refused to sever 
the statutory language claim from the desegregation case because 
of the need to coordinate the remedies. Two examples:

(1) The language decree provided for the employment and 
assignment of over 100 new teachers in September 1985 (1986 R. 
Vol. I at 25, 27); at the same time the Board was ordered to 
desegregate faculties.

(2) The language decree provided for the placement of pro­
grams for limited English proficiency children —  many of them 
Hispanic —  at various schools over several years (id. at 28); 
the desegregation orders have required that Hispanic pupils be 
integrated.



It was simply common sense for the court to retain jurisdic­
tion of the school desegregation issues while the language decree 
was being implemented.

G. The court did not abuse its discretion in retaining 
jurisdiction and in its management of the case. As Judge Matsch 
noted, the Supreme Court placed the burden on the district courts 
to supervise desegregation programs because of their "proximity 
to local conditions." 609 F. Supp. at 1494, n.l. citing Brown v. 
Board of Education. 349 U.S. 294, 296 (1955). The decisions of 
trial judges, engaged in this difficult and time consuming pro­
cess should not be lightly second guessed. Their judgment as to 
discretionary matters should be respected. Swann, supra. 402 
U.S. at 15-18. This Court held in Battle v. Anderson. 708 F.2d 
1523, 1539-40 (10th Cir. 1983) that "abuse of discretion" was the 
standard for review of a decision to retain jurisdiction in a 
prison conditions case:

Absent a conclusion that the district court 
has made clearly erroneous fact findings or 
has abused its discretion, we have no author­
ity to overturn its determination of the need 
for continuing jurisdiction.

The opinions below, covering more than a decade of effort, 
amply demonstrate the wisdom, patience and restraint of the dis­
trict judge in handling this complex case. The judge has always 
been appropriately respectful of the proper role of the elected 
school board. There is not an iota of evidence in this



voluminous record that the court has improperly interfered with 
the Board's educational policy decisions; rather he has encour­
aged and supported every innovative educational proposal while 
insisting upon effective desegregation. There is simply no basis 
for a holding that he abused his discretion in retaining juris­
diction over this case.

H. The decisions below are not in conflict with the 
Spangler case.51* Both below and here the Board has placed prin­
cipal reliance upon what Judge Matsch called "a very expansive 
interpretation of the Supreme Court's Spangler opinion". 609 F. 
Supp. at 1516. The Board's interpretation brushes aside numerous 
important factual differences in the two cases. Spangler did not 
involve findings that the district had caused resegregation by 
its own decision to close and reorganize schools and partially 
dismantle the pairing plan which created integration, or a plan 
that had never been finally accepted by the court, or a district 
that had allowed "baby-sitting" transfers to undermine its 
desegregation plan, or a district that had disobeyed a faculty 
desegregation order for a dozen years, or a district that 
attempted to desegregate by persuading Anglos into ghetto 
schools, or a district where desegregation was incomplete as to a 
grade-a-year Montessori magnet school. All of the foregoing

5 * Pasadena City Bd. of Educ. v. Spangler. 427 U.S. 424 (1976).



factors are distinguishing aspects of the Denver case. While 
Spangler was premised upon an effective plan subsequently changed 
only by demographics, here the changes have been Board-initiated, 
and, when ineffective, subject to further judicial review.

The Spangler decision does not hold that a brief period of 
obedience to a desegregation decree deprives a court of power to 
prevent a school board from scrapping its desegregation plan and 
returning to the status quo ante. It would pervert equitable 
principles to argue that a defendant is entitled to have an 
injunction dissolved merely because it has been obeyed for a num­
ber of years. That is not the rule of United States v. Swift & 
Co.. 286 U.S. 106 (1932). A defendant must show more than mere 
obedience to obtain relief from a permanent injunction. S.E.C. 
v. Jan-Dal Oil & Gas. Inc.. 433 F.2d 304 (10th Cir. 1970); Dowell 
v. Board of Education. 795 F.2d 1516, 1521 (10th Cir. 1986).
This Court rejected the contrary argument in Battle v. Anderson. 
708 F.2d 1523, 1538, n.4 (10th Cir. 1983), invoking the familiar 
principle that "the power to grant injunctive relief survives 
discontinuance of the illegal conduct."55

55 United States v. W. T. Grant Co.. 345 U.S. 629, 633 (1953); 
United States v. Oregon State Medical Soc., 343 U.S. 326, 333 
(1952); City of Mesquite v. Aladdin's Castle, Inc.. 455 U.S. 283, 
289 (1982); System Federation v. Wright, 364 U.S. 642 (1961).



II. The record and findings support the October 1987 injunction 
and the limited retention of jurisdiction.

The Interim Decree superseded prior injunctions. It elimi­
nated detailed plan requirements from the 1974 Decree but con­
tinued injunction provisions based on Svann to require integra­
tion of the school system. The findings and conclusions 
contained in the four preceding opinions, which we have discussed 
in Argument I, parts B to G, demonstrate the current need for 
injunctive relief in the Denver schools. See Keyes. supra. 540 
F.Supp. 399 (1982); 609 F.Supp. 1491 (1985); unreported Order for 
Further Proceedings, October 29, 1985; and 653 F.Supp. 1536 
(1987).

These findings and our arguments above amply demonstrate the 
need for some form of injunction here. The opinions simply belie 
the Board's contention that the court has found the system 
unitary, as the determination that the District is not unitary as 
to pupil assignment, and not ready for complete release from 
supervision is abundantly supported. The Board's brief concedes 
as much with respect to transfer abuses and faculty segregation. 
The rulings on the three resegregated schools and the issue of 
school abandonment and utilization similarly are based on well 
supported findings and clear legal precedents.

The Board also concedes the need for injunctive relief 
against Colorado's Anti-Busing Amendment which if unimpeded would 
require that the remedies be dismantled. The Board correctly 
states that the provision is unconstitutional (Brief pp.32-33)



and says that the concern "could" be met by a "declaratory judg­
ment or injunctive provision." Id. That is tantamount to 
conceding the propriety of paragraph 8 of the interim Decree.

The court has relaxed supervision of the desegregation pro­
cess. The pre-clearance feature of retained jurisdiction —  an 
element of "supervision" by the trial judge —  has been elimi­
nated. The decision to give the Board more leeway at this time 
was well within the discretion of the trial judge. The judge 
thought this a necessary step toward a final decree wherein 
defendants could demonstrate that they understood and could per­
form their constitutional duty. The Board, which has sought 
freedom from court supervision, has largely achieved it, but must 
now accept the responsibility for its actions, and the reality 
that the freedom is not a license to resegregate the schools.

Ill. The Interim Decree Is An Appropriate Exercise Of Judicial 
Discretion

The District Court, in formulating the interim Decree recog­
nized that its task was to fashion a decree which strikes a 
balance between provisions which are too rigid56 in maintaining

56 The Board argued below for a decree which kept the plan in 
place, required prior court approval for any substantial changes, 
and specifically directed the continuance of particular Board 
policies regarding teacher assignments and pupil transfers, and 
imposed racial quotas on new magnet schools. See Defendant's 
Submission As To Terms Of A Modified Injunction, March 30, 1987, 
Addendum at 169-172.



the status quo on the one hand, and too vague to be meaningful on
the other. 670 F. Supp. at 1515.

Another valid objective was to determine whether the Board 
could maintain integration and remedy problems regarding the 
three schools, pupil transfers and faculty assignments without 
specific court directives. In view of the Board's repeated 
failures to measure up to remedial requirements, the court’s con­
cern was well founded. .609 F.Supp. 1520, 1521. This was a rea­
soned exercise of discretion. Youngblood v. Board of Public 
Instruction of Bay County. 448 F.2d 770 (5th Cir. 1971).

School Desegregation Is Not Yet Complete In Denver. A num­
ber of the District's arguments about the allegedly vague lan­
guage of the interim Decree are premised upon their assertion 
that all possible desegregation has been accomplished57 and that 
the District is unitary. That same faulty premise underlies its 
reliance on Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987).

The premise totally ignores the ongoing and as yet untested 
voluntary program for the integration of the three elementary 
schools, and the current issue of the effectiveness of the Dis­
trict's new pupil transfer policy, yet to be demonstrated.

The Brief, at pages 37-38 unpersuasively attempts to equate 
the court's relaxation of the injunction as to pupil assignments

57 Brief 
graphs 1,

, pp. 41, 42, 45, attacking the provisions of para- 
2 and 4 of the Decree.

-42-



"as a determination that the remedy was complete, so far as stu­
dent assignments are concerned." Yet it is clear that here the 
court is actively pursuing additional achievable integration 
where school authorities are clearly responsible for the 
slippage, and alternative effective remedies are available. This 
inapplicable equation is required to bring Keyes within the situ­
ation in Morgan, where pupil desegregation was complete in Boston 
for a number years, and no further efforts were feasible or con­
templated. Morgan, 831 F.2d at 324. Because of Denver's differ­
ent situation, Morgan is simply inapplicable. 609 F.Supp. at 
1517; see also. Order For Further Proceedings at pp.1-2.

The Interim Decree Is A Temporary, And Reduced Intrusion 
Into Total Board Control. The Board argues insincerely that it 
is improper for the court to keep the District under the interim 
Decree for an "indeterminate" period of time (Brief, pp. 39, 46, 
48), yet the timetable established by the court58 and known to 
the Board is that as soon as the results of the substantial 
changes in grade structure to be implemented for the 1988-89 
school year are known, the District can seek a hearing, and dem­
onstrate the effectiveness of its efforts. Assuming effec­
tiveness, at that point it is the court's intention to enter a 
permanent injunction and cease active jurisdiction.

58 Tr. of Nov. 13, 1987 at 6-7, 9. Add. at 154-168.

-43-



The Board's request for a remand (paragraph 3, p.49) seeks 
to limit the district court's assessment merely to good faith 
implementation, whereas the appropriate criteria is effec­
tiveness. Dayton Bd. of Educ.. supra. 443 U.S. at 538-40.

The Provisions Of The Interim Decree Are Sufficiently Spe­
cific Under Rule 65(d). As noted in Scandia Down Corp. v. 
Euroquilt. Inc.. 772 F.2d 1423, 1431 (7th Cir. 1985), "Rule 65(d) 
does not require the impossible. There is a limit to what words 
can convey. The more specific the order, the more opportunities 
for evasion (loop-holes)." There, in a trademark context, an 
injunction against "any colorable imitation" of a particular logo 
was upheld because it would be impossible to describe every 
imaginable combination of words and pictures which could be 
created. As the court said: " . . .  Rule 65(d) does not require
a torrent of words when more words would not produce more 
enlightenment about what is forbidden. When the difficulty stems 
from the inability of words to describe the variousness of expe­
rience, the court may prefer brief imprecise standards to prolix 
imprecise standards."

So here the task is to establish and maintain a unitary sys­
tem, a concept which embraces many elements which are affected by 
the decisions of school authorities. Given this complexity, 
utilization of broad principles is the only pragmatic choice 
between meaningless platitudes and rigid formulas.



In Svann itself the Supreme Court recognized the difficul­
ties in defining this equitable remedial power:

However, in seeking to define the scope of remedial 
power or the limits on remedial power in an area as 
sensitive as we deal with here, words are poor instru­
ments to convey the sense of basic fairness inherent in 
equity. Substance, not semantics must govern, and we 
have sought to suggest the nature of limitations with­
out frustrating the appropriate scope of equity." 402 
U.S. at 31.

The Decree's provisions regarding the Board's duties with regard 
to "one race schools" conform to the doctrine of Swann. supra.
402 U.S. at 25-26.

Adequate Safeguards Exist Against Inadvertent Contempt. If 
the Board is ever really uncertain about proposed conduct, it can 
always seek clarification or modification. Scandia Down Corp.. 
772 F.2d at 1432. In fact, that opportunity was clearly stated 
here. Tr. Pretrial Conf. Nov. 13, 1987 at 15; Addendum 
at 154-168. This Court has recognized the utility of this proce­
dure: The District may "return to the court if it wants to alter
the duties imposed upon it by a mandatory decree." Dowell v. 
Board of Education. 796 F.2d 1516, 1520 (10th Cir.), cert.
denied. ___ U.S. __ , 107 S.Ct. 420, 93 L.ed. 2d 370 (1986).
Thirty-four years' experience since Brown demonstrates that the 
contempt power is simply not used in these cases. It is not a 
realistic concern. 609 F. Supp. at 1521. Moreover in a civil or 
criminal contempt proceeding, any vagueness in the Decree is



construed in favor of the party charged with contempt. Ford v. 
Kammerer. 450 F.2d 279, 280 (3d Cir. 1971); New York Tel. Co. v. 
Communications Workers of Am.. 445 F.2d 39, 48 (2d Cir. 1971).

The Decree Properly Describes The Enjoined Conduct In Terms 
Of Its Effect. The thrust of the interim Decree is to prevent 
resegregation through Board action. The concept of resegregation 
obviously requires a comparison, before and after, in analyzing 
the effect of the conduct. It is not at all unusual to proscribe 
conduct in terms of its effects. See, e.q.. Pacific Marine Ass'n 
v. International. L.&W.U., 517 F.2d 1158, 1162 (9th Cir.
1975)(injunction against work "slowdown": "The crucial question 
was not as to kind of action taken but as to its effect and pur­
pose." )

Paragraph 1, taken from the 1974 Decree, and providing that: 
"They shall continue to take action necessary to disestablish all 
school segregation, eliminate the effects of the former dual sys­
tem and prevent resegregation," does not tell the Board how to do 
it; rather it describes the effects to be achieved or avoided.

Moreover, paragraph 2 of the Decree spells out the process 
which the Board is to follow before making changes in the plan; 
i.e.. to analyze the effects of its proposed action. Then, "The 
Board must act to assure that such changes will not serve to 
re-establish a dual school system."



Future school construction and abandonment are to be guided 
by the same considerations, as is explicitly sanctioned in Swann:

"In devising remedies where legally imposed segregation 
has been established, it is the responsibility of local 
authorities and district courts to see to it that 
future school construction and abandonment is not used 
and does not serve to perpetuate or re-establish the 
dual system. When necessary, district courts should 
retain jurisdiction to assure that these 
responsiblities are carried out [citations omitted] 402 
U.S. 1, at 21.

It is clear that actions which have the prohibited effects 
are those which will be scrutinized for the necessary 
discriminatory intent. The court recognized that intent require­
ment:

" . . .  some discriminatory intent must be shown to 
prove a violation of the constitutional requirement 
that educational opportunity must be equally avail­
able." 670 F. Supp. at 1516.

The court was fashioning its decree on the principles enunciated 
in Swann. 670 F. Supp. 1515-16. While the District complains 
about vagueness, it .is the Swann standard as to schools which are 
substantially disproportionate in their racial composition:

The court should scrutinize such schools, and the 
burden upon the school authorities will be to satisfy 
the court that their racial composition is not the 
result of present or past discriminatory action on 
their part." 402 U.S. at 26.

We see no substantive difference in the court's use of "racially 
identifiable" instead of Swann's "schools which are substantially



402 U.S. at 26.disproportionate in their racial composition."
Undoubtedly the District would complain about the vagueness of 
that language as well.

The Interim Decree Imposes No Requirement Of Maintaining 
Racial Balances Through Periodic Adjustments In Assignments. The 
Board concedes, as it must, that because the Board is only held 
accountable for resegregation which it causes, it is "not 
required to correct for demographic changes."59 This clearly 
distinguishes this case from Spangler and Morgan.

The Interim Decree Imposes No Obligation To Undertake New 
Remedies. Finally, the Board faults paragraph 7 of the interim 
Decree, as creating new and unwarranted obligations to undertake 
new remedies, or requiring the continuation of unspecified pro­
grams and policies.

This paragraph was suggested by plaintiffs, and as is well 
known to the Board, the rationale was explicitly based upon a 
recasting of paragraph 10 of the original Decree.60 In view of 
the substantial changes in pupil assignment for the coming 
1988-89 school year, the concern that reassigned pupils not lose 
remedial and compensatory educational assistance remains a valid 
concern.

59 Brief, p. 45.
60 See Plaintiffs/Intervenors' Response To Defendants' Submis­
sion And Comments Regarding Interim Decree, dated April 15, 1987, 
at p. 10, Add. at 183.

-48-



CONCLUSION
It is respectfully submitted that the judgment should be 

affirmed.
REQUEST FOR ORAL ARGUMENT

Appellees join the request for oral argument, which we 
believe will be helpful in understanding an appeal involving 
three trials and five opinions and orders.

Norma V. Cantu
Mexican American Legal Defense 

and Educational Fund, Inc. 
314 E. Commerce Street 
Suite 200
San Antonio, Texas 78205 
(512) 224-5476

Respectfully submitted,

Gordon G. Greiner 
Holland & Hart
P. 0. Box 8749 
555 17th Street 
Suite 2900
Denver, Colorado 80201 
(303) 295-8000

Peter Roos
2111 Mission Street
Room 401
San Francisco, California 94110 
(415) 864-3414

James M. Nabrit, III 
99 Hudson Street, 16th Fir. 
New York, New York 10013
(212) 219-1900

ATTORNEYS FOR PLAINTIFF/ 
INTERVENORS-APPELLEES

ATTORNEYS FOR PLAINTIFFS- 
APPELLEES

-49-
D07492005G



CERTIFICATE OF SERVICE

I certify that the foregoing Joint Brief for Appellees 
and the Addendum to Brief for Appellees were served upon each of 
the persons listed below by depositing in the United States mail 
postage prepaid, this 2nd day of June, 1988.

Phil C. Neal, Esq.
Neal, Gerber, Eisenberg & Lurie 
208 South LaSalle Street 
Chicago, Illinois 60604
Michael H. Jackson, Esq.
Semple & Jackson
Chancery Building
1120 Lincoln Street, Suite 1300
Denver, Colorado 80203
David K. Flynn 
Department of Justice 
Washington, DC 20503

Attorney for Plaintiffs- 
Appellees

-50-
D07492005G



399KEYES v. SCHOOL DIST. NO. 1, DENVER, COLO.
Cit« as 540 F.Supp. 399 (1982)

Wilfred KEYES, et aL, Plaintiffs, 
v.

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

Congress of Hispanic Educators, 
Intervenors.

Civ. A  No. C-1499.
United States District Court,

D. Colorado.
May 12, 1982.

In school desegregation case, the Dis­
trict Court, Matsch, J., held that school dis­
trict’s modified consensus desegregation 
plan would be accepted for single school 
year where it was an expedient which 
would accommodate educational policy deci­
sion to move to middle schools and would 
attenuate divisive effects from factionalism 
found in board of education, but acceptance 
would be limited to one year with monitor­
ing and evaluation by the court where court 
was not convinced that school board had 
shown commitment to creation of unitary 
school system which would have adequate 
capacity for delivery of educational services 
without racial disadvantages.

Ordered accordingly.

L Schools *»13(1)
The Constitution does not compel the 

constant application of racial ratios for ev­
ery school in district, but racial ratios are a 
relevant factor in the measure of equal 
educational opportunity. U.S.C.AConst. 
Amend. 14.
2. Schools <•=» 13(2)

If schools which are racially isolated 
with minority student population are done 
by design, there is illegal discriminatory 
intent, while if they are created by transito­
ry circumstances which can be expected to 
change and if the attending student popula­
tion has other opportunities for a more di­
versified experience during the total time 
of attendance within the system, a limited 
number of such schools can be tolerated.

3. Schools <*=> 13(6)
School district’s modified consensus de­

segregation plan would be accepted for sin­
gle school year where it was an expedient 
which would accommodate educational poli­
cy decision to move to middle schools and 
would attenuate divisive effects from fac­
tionalism found in board of education, but 
acceptance would be limited to one year 
with monitoring and evaluation by the 
court where court was not convinced that 
school board had shown commitment to cre­
ation of unitary school system which would 
have adequate capacity for delivery of edu­
cational services without racial disadvan­
tages.

4. Schools <*=» 13(20)
Federal courts are required to focus 

upon three factors in exercising the equita­
ble principles applicable to the desegrega­
tion remedy: the nature of the remedy is 
determined by the nature and scope of the 
constitutional violation; the decree must be 
remedial in nature; and the courts must 
consider the interests of local authorities in 
managing their own affairs consistent with 
the Constitution.

5. Schools <*=» 13(4)
Present school board’s majoritarian 

representation could not be permitted to 
retreat from responsibility to remedy ef­
fects of discriminatory policies of previous 
boards.

6. Schools «=>13(3)
“Unitary school system” which is objec­

tive of desegregation process is one in 
which all of the students have equal access 
to the opportunity for education, with the 
publicly provided educational resources dis­
tributed equitably, and with the expecta­
tion that all students can acquire a commu­
nity defined level of knowledge and skills 
consistent with their individual efforts and 
abilities, and it provides chance to develop 
fully each individual’s potentials without 
being restricted by an identification with 
any racial or ethnic group.

See publication Words and Phrases
for other judicial constructions and
definitions.



I

540 FEDERAL SUPPLEMENT

Gordon G. Greiner, Holland & Hart, Den­
ver, Colo., James Nabritt, III, NAACP N at 
Legal Defense Fund, New York City, for 
plaintiffs.

John S. Pfeiffer, Gorsuch, Kirgis, Camp­
bell, Walker & Grover, Michael H. Jackson, 
School District No. 1, Denver, Colo., for 
defendants.

MEMORANDUM OPINION AND ORDER
MATSCH, District Judge.
The immediate issue to be decided is 

whether the defendant School District No. 1 
should be authorized to implement the pupil 
assignment plan of March 30, 1982, admit­
ted into evidence as defendant’s Exhibit 
F -L  My answer is yes, with qualifications 
and reservations. An understanding of the 
future requirements attendant upon this 
qualified approval may be assisted by a 
review of the remedial phase of this law­
suit.

It must be remembered that in Brown v. 
Board o f Education, 347 U.S. 483, 74 S.Ct 
686, 98 L.Ed. 873 (1954), the United States 
Supreme Court established the constitution­
al principle that racially segregated public 
school facilities are inherently unequal, re­
sulting in a deprivation of the equal protec­
tion of the law guaranteed by the Four­
teenth Amendment to the United States 
Constitution. That reversal of the “sepa­
rate but equal” doctrine removed the legal 
foundation for the dual school systems 
which had existed in many states.

While Denver did not have a formal poli­
cy of separating students by race, the Su­
preme Court concluded that the manipula­
tion of a neighborhood school concept con­
stituted a policy of deliberate racial segre­
gation and instructed that upon the failure 
of the school board to show that the Park 
Hill area was isolated from the rest of the 
district, the system must be declared a dual 
system and the Denver Board of Education 
must be directed to desegregate the entire 
system “root and branch.” Keyes v. School 
District No. 1, Denver, Colorado, 413 U.S. 
189, 213, 93 S.Ct 2686, 2699, 37 L.Ed.2d 548 
(1973).

400

After extensive hearings during which 
Denver rigidly resisted proposed remedial 
measures, this court compelled compliance 
with a desegregation plan which was based 
upon the recommendations of Dr. John Fin­
ger. Keyes v. School District No. 1, Den­
ver, Colorado, 380 F.Supp. 673 (D.Colo. 
1974). After the part-time classroom pair­
ing and compensatory education provisions 
of that plan were disapproved by the Tenth 
Circuit Court of Appeals, Keyes v. School 
District No. 1, Denver, Colorado, 521 F.2d 
465 (10th Cir. 1975), the parties in this case 
came together and agreed upon a modified 
plan which was approved by a court order 
entered in 1976. Because a sense of stabili­
ty was a factor in that stipulation, it was 
agreed that no changes would be made for 
three years.

A central consideration in those plans 
was the avoidance of racially identifiable 
schools by adhering to a guideline that all 
schools have pupil populations within ± 
15% of the anglo student enrollments in the 
district A declining population and a de­
creased anglo enrollment made changes 
necessary in 1979. The Board of Education 
responded to that need with Resolution No. 
2060, providing for the closing of four ele­
mentary schools and changes in pupil as­
signments for the academic year 1979-1980.

That pupil assignment plan generated a 
controversy which was resolved by this 
court making its own determinations with 
the expressed reservation that what was 
ordered was to be considered only an inter­
im action required to meet an existing 
emergency. It was recognized that Resolu­
tion No. 2060 directed that additional study 
be made before any more school closings, 
consolidations or new construction were un­
dertaken. It was also observed that a 
hoped for residential growth with natural 
integration could be assisted and advanced 
by creative new proposals for educational 
enhancement during the time of transition. 
I indicated a willingness to consider such 
proposals.

Shortly after the entry of the memoran­
dum opinion and order assigning pupils for 
the 1979-80 school year, Keyes v. School 
District No. 1, Denver, Colorado, 474

f

ft



401KEYES v. SCHOOL DIST. NO. 1, DENVER, COLO.
Cite as 540 F.Supp. 399 (1982)

F.Supp. 1265 (D.Colo.1979), the Board of 
Education passed Resolution No. 2079, cre­
ating a Long-Range Planning Committee 
which produced a report in March, 1980, 
entitled, “Our Future . . .  Our Schools” 
(Defendant’s Exhibit C-24), recommending 
the development of a middle school pro­
gram and the establishment of a district 
staff academy. The board adopted those 
recommendations.

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

The Ad Hoc Committee produced a first 
report which was greeted with a negative 
response from interested community 
groups. It then continued the design proc­
ess, with additional community input. On 
June 5, 1981, the Ad Hoc Committee 
presented a final report, setting out a defi­
nition of a unitary school system, guidelines 
for its recognition, and a pupil assignment 
plan for the implementation of the middle 
school concept A copy of that document is 
in evidence as Defendant’s Exhibit D-2. 
Shortly before the presentation of that re­
port, the regularly scheduled election pro­
duced a change in the composition of the 
school board membership. As it has been 
since the first court orders in this case, the 
jingoism of “forced busing” was very preva­
lent during that political campaign.

Despite their differing views about “bus­
ing”, all of the school board members 
worked together in detailed discussions of 
the Ad Hoc Committee pupil assignment 
plan during the summer of 1981 and arrived 
at an informal consensus that the plan 
should be adopted with some modifications. 
Before legislative action was taken on that 
informal consensus, board member William 
Schroeder proposed a very different ap­
proach based upon an open enrollment poli­
cy.

On October 30, 1981, the defendant dis­
trict filed a document entitled “Submission 
of Plans”, with attachments called “Com­
munity Neighborhood School Open Enroll­
ment Concept” and “The Denver Public 
Schools: A Unitary System”. The latter 
document was the consensus plan, dated 
October 14, 1981. With these papers, the 
defendant also filed a request that the court 
establish hearing dates for consideration of 
the two contrasting “plans”; determine 
that the district is a unitary system and 
establish a timetable for relinquishment of 
jurisdiction.

On November 12, 1981, this court entered 
an order refusing the request to consider 
those two proposals and directing the de­
fendant to file a single plan for removal of 
racial discrimination in public education and 
the establishment of a unitary school sys­
tem.

The defendant then filed what has come 
to be called the “Total Access Plan” which 
came on for consideration in a two-week 
hearing which was concluded on March 15, 
1982. At that time, I indicated orally that 
the plan was not acceptable for implemen­
tation in the fall of 1982 because it was 
incomplete, insufficient and unrelated to 
the realities of the continuing effects of 
past segregative policies.

The Total Access Plan was submitted by 
a 4 to 3 majority of a sharply divided board. 
That plan rejected any respo .3ibility for 
removing the effects of the past discrimina­
tory dual system. The presenting premise 
was that a policy of open enrollment, with 
optional educational opportunities available 
in magnet schools, would provide a non-ra- 
cial system with equal opportunity. That is 
the kind of neutrality which was criticized 
by the Supreme Court in Green v. School 
Board o f New Kent County, 391 U.S. 430, 
88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

With that lack of concern, there was no 
commitment to the protection of the inter­
ests of racial minorities involved with the 
Denver school system. The Total Access 
Plan was a “sink or swim” approach with 
responsibility for finding access to opportu­
nity placed on the students and their fami-



540 FEDERAL SUPPLEMENT

lies. On the positive side, the expert wit­
nesses who testified at the hearing on the 
Total Access Plan generally approved of the 
educational philosophy involved in curricu­
lum diversity and considered it to have con­
siderable potential for enhancement of the 
quality of education for those students who 
might be able to participate.

The clearest and most concise criticism of 
the Total Access Plan came from the de­
fendant’s witness, Dr. Charles Willie, who 
had previously consulted with the Ad Hoc 
Committee. He applauded the expressed 
emphasis on quality of education, but found 
the need to impose constraints to ensure 
racial diversity along with the educational 
choices. Accordingly, he opined that the 
magnet schools must have some racial ra t­
ios and that parental choice should be sub­
ject to the responsibility of the school board 
to make the final assignments. More spe­
cifically, Dr. Willie advised that the Total 
Access Plan would be workable only upon a 
showing that the following factors were 
present:

1. The assurance of integration in the 
magnet schools.

2. The assurance of integration in the 
regular schools.

3. Demonstrated capacity of the trans­
portation element.

4. The assurance of an adequate affirm­
ative action program for the faculty.

5. The assurance of adequate integra­
tion in the placement of faculty.

6. An adequate system to provide fair­
ness in disciplinary suspensions and pupil 
placement in the classroom.

7. The assertion by the board of its ulti­
mate responsibility for making pupil assign­
ments.

8. The assurance of some stability by 
restricting the frequency with which there 
can be a change in the choice of schools.

The defendant district has failed to make 
an adequate showing on any of these fac­
tors. The probability that the Total Access 
Plan would result in resegregation of 
schools is a fair inference from the facts 
that most of the students would be served 
by regular schools; that the regular schools

402
must be equal in the quality of their curric­
ulum; that housing patterns in Denver con­
tinue to be segregated; and that most fam­
ilies would choose to have their children 
attend the nearest school.

In summary, the Total Access Plan was 
lacking in concern, commitment and capaci­
ty.

Following the announced rejection of the 
Total Access Plan, the Denver Board of 
Education adopted another plan by a 6 to 1 
vote. That plan, dated March 30,1982, is in 
evidence as Defendant’s Exhibit F—1. Es­
sentially, it is the consensus plan of October 
14, 1981, with two magnet school elements 
from the Total Access Plan. Those are the 
Gilpin Extended Day Program and the Fun­
damental Academy at Knight Elementary 
School.

An evidentiary hearing was held on this 
modified consensus plan, and it has been 
compared with an alternative pupil assign­
ment plan presented by the plaintiffs. The 
essential difference in the two plans now 
before the court is that the plaintiffs’ plan 
is more faithful to the ±  15% anglo popula­
tion guideline. The consensus plan carries 
that guideline to its extreme limits in many 
schools, and it avoids it in some others. 
Accordingly, if adherence to a racial ratio is 
required by the Constitution, the consensus 
plan is inadequate.

[1] The Constitution does not compel 
the constant application of racal ratios for 
every school in the district. That would 
require continual realignment of the kind 
criticized in Pasadena City Board o f Educa­
tion v. Spangler, 427 U.S. 424,96 S.Ct 2697, 
49 L.Ed.2d 599 (1976). While racial ratios 
are not the prescribed measure of equal 
educational opportunity, they are certainly 
a relevant factor. Schools which are racial­
ly isolated with minority student popula­
tions tend to become stigmatized and inade­
quate. Whether one or more such schools 
creates an inherently unequal opportunity 
depends upon many variables which are as­
sociated with the reasons why the particu­
lar schools have their racial identity. 
Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 24, 91 S.Ct. 1267, 
1280, 28 L.Ed.2d 554 (1971).



403KEYES v. SCHOOL DIST. NO. 1, DENVER, COLO.
C iteasS40F .Supp.399 (1982)

[2] If done by design, there is an illegal 
discriminatory intent If they are created 
by transitory circumstances which can be 
expected to change, and if the attending 
student population has other opportunities 
for a more diversified experience during the 
total time of attendance within the system, 
a limited number of such schools can be 
tolerated.

[3] In this case, I am now accepting the 
modified consensus plan for the single 
school year of 1982-83. I do so with con­
siderable reservation because I am not con­
vinced that the incumbent school board has 
shown a commitment to the creation of a 
unitary school system which will have ade­
quate capacity for the delivery of educa­
tional services without racial disadvantages.

The consensus plan is an expedient which 
will accommodate the educational policy de­
cision to move to middle schools and which 
will attenuate the divisive effects from the 
factionalism found in the present board of 
education. The positive element in this 
plan is that it reflects a consensus of the 
views of the board members. Acceptance 
of this plan for a single school year is not to 
be construed as an abdication of this court’s 
authority and responsibility to compel com­
pliance with the desegregation mandate.
[4] The teaching of the Supreme Court 

opinion deciding Milliken v. Bradley, 433 
U.S. 267, 97 S.CL 2749, 53 L.Ed.2d 745 
(1977) is that federal courts are required to 
focus upon three factors in exercising the 
equitable principles applicable to the deseg­
regation remedy. First, the nature of the 
remedy is determined by the nature and 
scope of the constitutional violation. 
Second, the decree must be remedial in 
nature. Third, the courts must consider the 
interests of local authorities in managing 
their own affairs consistent with the Con­
stitution. Id. at 280-81, 97 S.Ct. at 2757.

[5] What is most disquieting about the 
history of the remedy phase of this case is 
that the adjudicated constitutional violation 
was the isolation of racial minorities 
through the manipulation of school attend­
ance zones and the placement of new facili­
ties. All subsequent school board decisions 
on those aspects are made suspect by that

past conduct, and the present school board’s 
majoritarian representation cannot be per­
mitted to retreat from the responsibility to 
remedy the effects of the discriminatory 
policies of previous boards. Harmony in 
the community cannot be achieved by 
harming the interests of those whose lives 
are burdened by the brands of minority 
grouping labels.

One of the reasons for my rejection of the 
submission of two plans on October 30, 
1981, was that those two plans were quite 
different in concept. The adoption of the 
modified consensus plan does not eliminate 
the confusion about the direction which the 
school board desires to take. Is it neighbor­
hood schools, or is it freedom of choice 
among a variety of educational experiences? 
What are the long-range goals for new fa­
cilities construction? Of particular concern 
is the future of the Montbello area. Are 
the magnet school programs for Gilpin and 
Knight a signal that the board wishes to 
pursue the policy of providing diversity in 
the educational programs? How will the 
district protect against segregation in these 
two magnet schools and how will the imple­
mentation of the programs in these schools 
be incorporated into the total school sys­
tem?

These uncertainties compel the conclusion 
that court approval of the modified consen­
sus plan requires a corresponding increased 
involvement in the affairs of the Denver 
Public School System. It will ^e necessary 
to monitor and evaluate developments in a 
more substantive manner to ensure that the 
remedy of the effects of past racial discrim­
ination will not be retarded by any refor­
mation of educational policy, programs and 
practices.

[6] In announcing my rejection of the 
Total Access Plan, I said the time had come 
to establish some benchmarks to guide this 
school district in the future. As a first 
step, it may be helpful to announce a work­
ing definition of a unitary school system. I 
accept the suggestions of the Ad Hoc Com­
mittee. A unitary school system is one in 
which all of the students have equal access 
to the opportunity for education, with the 
publicly provided educational resources dis­



404 540 FEDERAL SUPPLEMENT

tributed equitably, and with the expecta­
tion that all students can acquire a commu­
nity defined level of knowledge and skills 
consistent with their individual efforts and 
abilities. It provides a chance to develop 
fully each individual’s potentials, without 
being restricted by an identification with 
any racial or ethnic groups.

I also view favorably the criteria for mea­
suring the extent to which a school system 
is moving toward or away from that goal 
expressed in the guidelines developed by 
the Ad Hoc Committee. (Defendant’s Ex­
hibit D-2, pp. 17-68).

Making these measurements is considera­
bly more difficult than taking body counts 
in school buildings. It requires some exper­
tise in several disciplines and it can best be 
done by those who have the ability to com­
municate with the administrative and 
teaching staff in the language of profes­
sional educators. It also requires careful 
and consistent monitoring. The adversary 
system developed for the litigation of dis­
puted facts was not designed for such su­
pervision of the remedial phase of a lawsuit 
During the past six years, I have relied 
greatly upon the work of the dedicated 
people who have served on the Community 
Education Council to oversee desegregation 
in the Denver school system. Those people 
deserve public acclamation for their efforts 
and they have achieved commendable re­
sults. I am grateful to each person who has 
served in that capacity.

What will be required for the future is 
work which is beyond the capacity of a 
citizens’ group. Accordingly, I am disband­
ing the Community Education Council at 
the close of this school year. To replace 
that group, I will establish a panel of ex­
perts to be appointed under the authority of 
Rule 706 of the Federal Rules of Evidence. 
Counsel will have an opportunity to partici­
pate in the selection of those persons.

Because of the reservations and concerns 
expressed in this memorandum opinion and 
because approval for implementation of the 
modified consensus plan is only another in­
terim expedient, it is apparent that addi­
tional hearings will be required. It is also 
obvious that this court must establish a

timetable for the district to proceed with 
further development of plans and programs. 
Additionally, further details on the Gilpin 
and Knight school programs must be sub­
mitted for approval and it may well be that 
some standard should be established to en­
able the school district to make minor 
changes in the pupil assignment plan for 
the coming academic year without the ne­
cessity for formal submission to this court 
For these reasons, a hearing should be con­
vened with an open agenda for counsel to 
state their views and make suggestions con­
sistent with the views expressed in this 
opinion. Accordingly, it is

ORDERED, that the defendant School 
District No. 1 may proceed with the imple­
mentation of the pupil assignment plan de­
scribed in Defendant’s Exhibit F - l  for the 
school year 1982-1983.

O | KEY NUM8ER SYSTEM)
^*1 T , « V — /

James Ellis McDANIEL and C. Waverly 
Parker, Plaintiffs, 

v.
Richard ISRAEL, District Manager, Dis­

trict Office, Social Security Administra­
tion, and Richard S. Schweiker, Secre­
tary of Health and Human Services, De­
fendants.

Eddie Corn LEACH and C. Waverly 
Parker, Plaintiffs,

v.
Richard ISRAEL, District Manager, Dis­

trict Office, Social Security Administra­
tion, and Richard S. Schweiker, Secre­
tary of Health and Human Services, De­
fendants.

Civ. A. Nos. 81-0005-C, 81-0006-C.
United States District Court,

W. D. Virginia, 
Charlottesville Division.

May 13, 1982.

A motion was filed to vacate the judg­
ment entered by the District Court, 534



1513KEYES v. SCHOOL
a t e  u  670 F-Supp.

der Washington State law must therefore 
fail.

The Ninth Circuit test for an exercise of 
specific long-arm jurisdiction as described 
in Datadisc and Haisten also requires that 
the claim must be one that arises out of or 
results from the defendants’ forum-related 
activities. Therefore, Zepeda’s request for 
specific long-arm jurisdiction must fail for 
the same reason his claim under state law 
fails.

Zepeda’s failure to present evidence suf­
ficient to support this element of his claim 
under state long-arm jurisdiction must re­
sult in a dismissal of this case for lack of 
jurisdiction, unless Zepeda can show that 
“general” jurisdiction may be exercised un­
der Ninth Circuit standards.

DENVER, COLO.
1S13 (D.Colo. 19T7)
plaintiff with an additional cause of action, 
wrongful discharge in violation of public 
policy, which he does not have in Washing­
ton. Since these defendant corporations 
are incorporated under Oregon law, Ore­
gon has a greater interest than Washing­
ton in adjudicating the dispute. Finally, we 
observe that the law prohibiting discrimina­
tion on the basis of handicap is new and 
rapidly developing, and that the plaintiffs 
claim of termination based on a suspected 
handicap presents a novel cause of action 
which would best be addressed in the state 
where the cause of action arose. For these 
reasons, general long-arm jurisdiction over 
the defendants should not be exercised de­
spite defendants’ business contacts with 
the State of Washington.

DIST. NO. 1,

2. "General” Jurisdiction 
[2] Failure to make a sufficient show­

ing that his-eause of action arises from or 
is connected with the defendants’ business 
transactions in the state does not prevent 
Zepeda from asserting a “general” long- 
arm jurisdictional claim under the Ninth 
Circuit test described in Datadisc, Inc. 
The defendants’ business transactions with 
the State of Washington arguably are sub­
stantial, continuous, and systematic. 
Nevertheless, it appears the Ninth Circuit 
has declined to recognize an exercise of 
general long-arm jurisdiction in numerous 
cases in which the defendants’ business 
contacts in the plaintiffs’ chosen forums 
were equal to or greater than those in the 
<-a<m at bar. See Helicopteros Nacionales 
de Columbia v. Hall, Scott v. Breeland, 
Cubbage v. Merc hen t, and Congoleum 
Corp. v. DLW Aktiengesellscha/t 

There are other reasons to conclude that 
an exercise of long-arm jurisdiction over 
these Oregon defendants would be at odds 
with federal constitutional principles of due 
process. An Oregon forum is readily avail­
able to the plaintiff. Although it may be 
less convenient for the plaintiff to maintain 
this cause of action in Oregon, it would be 
much more convenient for the Oregon de­
fendants, and most of the witnesses, to be 
haled into court there. It appears that 
Oregon law prohibiting handicap discrimi­
nation provides the plaintiff with adequate 
protection in that forum, and provides the

ORDER
For the foregoing reasons it is now OR­

DERED
1. The defendants’ Motion to Dismiss 

for Lack of Personal Jurisdiction is 
GRANTED.

2. Defendant Pace Video Center’s Mo­
tion to Drop Improper Party is declared 
MOOT.

3. This case is DISMISSED.
The Clerk of the Court is instructed to 

send uncertified copies of this Order to all 
counsel of record.

Wilfred KEYES, et al.. Plaintiffs,

Congress of Hispanic Educators, et al., 
Plaintiffs-Intervenors,

v.
SCHOOL DISTRICT NO. 1, DENVER, 

COLORADO, et al., Defendants.
Civ. A. No. C-1499.

United States District Court,
D. Colorado.
Oct 6, 1987.

In remedial phase of desegregation 
case, the District Court, Matsch, J., held



1514 670 FEDERAL SUPPLEMENT

that: (1) tern  “racially identifiable
schools'* was not too indefinite as used in 
interim decree; (2) discriminatory intent in 
operation of schools is not measured by 
good faith and well m eaning o f  individual 
board members or o f  persons who carry 
out policies and program s directed by 
board, but rather, refers to institutional 
intent which can be proven only by circum­
stantial evidence; and (3) interim decree 
enjoined discrimination on basis o f  race, 
color, or ethnicity in operation o f school 
system  and set forth powers and duties o f 
school district and school-related entities in 
operation of schools.

Ordered accordingly.

1. Schools *=>13(20)
Term “racially identifiable schools” 

was not too indefinite to use in interim 
decree~in remedial phase o f  desegregation  
case.

2. Schools ^*1309)
Discriminatory intent in operation o f  

schools is not measured by good faith and 
well meaning of individual board members 
or o f persons who carry out policies and 
programs directed by board, but refers to 
institutional intent which can be proven 
only by circumstantial evidence; what 
school district does in operation o f its 
schools wiD control over w hat board says in 
its resolutions.

3. Schools *=*13(7)
In remedial stage o f  school desegrega­

tion case, court m ust be concerned with 
affirmative duty to eradicate effects of 
past intentional governmental discrimina­
tion.

4. Schools *=>13(7)
When unitary status o f  school district 

is achieved with respect to race, color, or 
ethnicity, court supervision o f  district in 
remedial phase of desegregation case can 
be removed only when it is reasonably cer­
tain that future actions will be free from 
institutional discriminatory in ten t

5. Schools *=*13(20)
Interim decree in remedial phase of 

desegregation ease enjoined discrimination

on basis o f race, color, or ethnicity in opera­
tion o f school system  and se t  forth powers 
and duties o f school district and school-re­
lated entities, providing a necessary step  
toward final decree which would terminate 
jurisdiction and remove court supervision  
at time when it was reasonably certain that 
future actions would be free from  institu­
tional discriminatory in ten t

Gordon G. Greiner, Holland & Hart, Den­
ver, Colo., James M. Nabritt, III, N ew  
York City, for plaintiffs.

Antonia Hernandez, Norm a V. Cantu, 
Mexican American Legal D efen se and Edu­
cational Fund, San Antonio, Tex., Kenneth 
Siegal, Kenneth Salazar, Sherman & Ho­
ward, Denver, Colo., for plaintiffs-inter- 
venors.

Michael H. Jackson, Sem ple & Jackson, 
Denver, Colo., Phil C. N eal, N eal, Gerber & 
Eisenberg, Chicago, 111., for defendants.

MEMORANDUM OPINION  
AND ORDER

MATSCH, District Judge.

In the Memorandum Opinion and Order 
entered June 3, 1985, Keyes v. School Dis­
trict No. 1, Denver, Colo., 609 F.Supp. 
1491 (D.Colo.1985), this court determined 
that the remedial phase o f  this desegrega­
tion case had not been completed and, 
therefore, denied the defendants’ motion to 
declare the District unitary and terminate 
jurisdiction. After the parties’ unsuccess­
ful attem pts to reach a settlem ent, an Or­
der For Further Proceedings w as entered 
on October 29, 1985, directing the District 
to subm it plans for achieving unitary sta­
tus. The defendants and plaintiffs sub­
mitted their respective proposals for fur­
ther remedial action, resulting in the Mem­
orandum Opinion and Order o f  February 
25, 1987, 653 F.Supp. 1536 (D.Colo.1987). 
That decision recognized the plaintiffs’ and 
plain tiff-in tervenors’ (plaintiffs) skepticism  
about the concern, commitment and capaci­
ty o f  the defendants to achieve and main­
tain a unitary system  in Denver, Colorado, 
given the history o f this litigation. None-



i  opera- 
powers 
hool-re-
§T 8teP 
rminate 
ervision  
ain that 
institu-

rt, Den- 
1, New

Cantu, 
4  Edu- 

enneth  
& Ho-

'3-intei^

ackson, 0ber & 
lants.

Order 
ol Dis- 
■\Supp. 
rmined
grega- 

4  and, 
tion to 
minate 
uccess- 
an Or- 
'nteredŝtrict 
ry sta- 
s sub- 
)T fur- 
; Mem- 
bruary 
J 9 8 7 ) . 
“ ’and 
iticism
:apad-

main-
orado,
None-

If

ii{i
iI
t

i

KEYES v. SCHOOL DIST. NO. 1, DENVER, COLO. 1515
a t e  u  670 F-Supp. 1313 (D.Colo. 1M7)

theless, this court refused to grant the 
further relief sought by the plaintiffs and 
accepted the defendants’ approach in the  
m atters of: (1) Barrett, Harrington and 
Mitchell elementary schools, (2) the “hard­
ship” transfer policy, (3) faculty assign­
ments, and (4) plans for implementation of 
Resolution 2233. Additionally, this court 
rejected the plaintiffs’ proposed data collec­
tion, monitoring and reporting require­
m ents, relying on the defendants to estab­
lish and implement sufficient data collec­
tion and monitoring to demonstrate the ef­
fectiveness o f their proposals when called 
upon a t an appropriate time.

This court also looked to the future and 
recognized the need for modification o f the 
existing court orders to relax court control 
and give the defendants greater freedom to 
respond to changing circumstances and de­
veloping needs in the educational system . 
Accordingly, the parties were asked to sub­
mit proposals for an interim decree to re­
place existing orders. Those suggested  
modifications were received and a hearing 
w as held on June 24, 1987. The proposals, 
the memoranda concerning them and the 
argum ents o f  counsel at the hearing have 
been carefully considered.

The essential difference between the par­
ties in approaching the task at hand is that 
the defendants have asked the court to 
establish standards which will provide guid­
ance for the District in taking the neces­
sary actions and which will also provide a 
m easurem ent for compliance. Thus, the 
defendants su ggest that changes in attend­
ance zones, assignments to schools, and 
grade-level structure from the student as­
signm ent plan in effect for the 1986-87 
school year not be made without prior 
court approval if  the projected effect would 
be to cause a school’s minority percentage 
to  move five percentage points or more 
further away from the then-current dis­
trict-wide average for the level (elementa­
ry, middle or high school) than in the year 
preceding the proposed change. Addition­
ally, the defendants su ggest that no new  
m agnet school or magnet program be es­
tablished unless enrollment is controlled so 
that the anglo and minority enrollments, 
respectively, are at least 40% o f the total

enrollm ent within a reasonable time. The 
defendants also su g g e st  that prior court 
approval m ust be obtained for any enlarge­
m ent o f  existing school facilities, construc­
tion o f  new schools, or the closing of any 
schools.

The plaintiffs contend that the defend­
ants’ request for specific judicial directives 
dem onstrates their reluctance to accept re­
sponsibility to eradicate the effects o f past 
segregation , and to assure that changes in 
policies, practices and programs will not 
serve to reestablish a dual school system . 
The defendants’ reliance on the court cre­
ates doubt about their ability and willing­
ness to m eet the constitutional mandate o f  
equal educational opportunity.

The injunctive decree m ust m eet the re­
quirem ents o f  Rule 65(d) o f the Federal 
R ules o f  Civil Procedure and, yet, that re­
quirem ent o f  specificity should not be per­
m itted to stifle  the creative energy o f those 
who plan, supervise and operate the Dis­
trict, or to supplant their authority to gov­
ern. The task, therefore, is to develop a 
decree which strikes a balance between ri­
gidity and vagueness. The principal pur­
pose is to enable the defendants to operate 
the school system  under general remedial 
standards, rather than specific judicial di­
rectives. This interim decree removes ob­
solete provisions o f existing orders, relin­
quishes reporting requirem ents, and elimi­
nates the need for prior court approval 
before making changes in the District’s 
policies, practices and programs. The de­
fendants are expected to act on their own 
initiative, w ithout prior court approval, to  
make those changes in the student assign­
m ent plan o f  attendance zones, pairings, 
m agnet schools or programs, satellite 
zones and grade level structure which the  
Board determ ines to be necessary to m eet 
the educational needs o f  the people o f  Den­
ver.

The interim decree is a necessary step  
toward a final decree which will terminate 
jurisdiction. The legal principles involved 
continue to be those articulated by Chief 
Justice Burger for a unanimous Supreme 
Court in Swann v. Charlotte-Mecklenburg 
Board o f Education, 402 U.S. 1, 91 S .C t



1516 670 FEDERAL SUPPLEMENT

1267, 28 LEd.2d 554 (1971). The final de­
cree will be formed under the guidance o f  
Dowell v. Board o f Education o f Okla­
homa City, 795 F.2d 1516 (10th Cir.1986). 
The timing o f a final order term inating the 
court’s supervisory jurisdiction will be di­
rectly related to the defendants’ perform­
ance under this interim decree. It will be 
the defendants' duty to dem onstrate that 
students have not and will not be denied 
the opportunity to attend schools o f  like 
quality, facilities and sta ffs  because o f  
their race, color or ethnicity. When that 
has been done, the remedial stage  o f  this 
case will be concluded and a final decree 
will be entered to give guidance for the 
future.

t l-5 ]  The defendants object to the use  
o f  the term “racially identifiable schools” 
as too indefinite and express apprehension 
that this may be construed to mean an 
affirmative duty broader than that re­
quired by the Equal Protection Clause o f  
the Fourteenth Amendment to the Consti­
tution. This concern is eliminated by the 
requirement that racial identifiability or 
substantial disproportion m ust not result 
from the defendants’ actions. W hat is en­
joined is governmental action which results 
in racially identifiable schools, as discussed  
in Swann. In the evo lu tion 'o f the law  
since Brown v. Board o f Education, the 
Supreme Court has indicated in the opin­
ions for the majority in Pasadena City 
Board o f Education v. Spangler, 427 U.S. 
424, % S.C t 2697, 49 L Ed.2d 599 (1976), 
and in Dayton Board o f Education v. 
Brinkman, 433 U.S. 406, 97 S .C t 2766, 53 
L.Ed.2d 851 (1977), that som e discriminato­
ry intent must be shown to prove a viola­
tion of the constitutional requirem ent that 
educational opportunity m ust be equally  
available. That intent is not, however, 
measured by the good faith and well mean­
ing of individual Board members or o f  the 
persons who carry out the policies and pro­
grams directed by the Board. The intent is 
an institutional intent which can be proved 
only by circumstantial evidence. W hat the 
District does in the operation o f  its schools 
will control over what the Board says in its 
resolutions. In the remedial stage  o f  a 
school desegregation case, the court m ust

be concerned with the affirmative duty to 
eradicate the effects of past intentional 
governmental discrimination. When uni­
tary status is achieved, court supervision 
can be removed only when it is reasonably 
certain that future actions will be free 
from institutional discriminatory intent

Upon the foregoing, it is now 
ORDERED AND ADJUDGED:
1. The defendants, their agents, offi. 

cers, em ployees and successors and all 
those in active concert and participation 
with them, are perm anently enjoined from 
discriminating on the basis o f  race, color or 
ethnicity in the operation o f  the school sys­
tem. They shall continue to take action") 
necessary to disestablish all school segre- /  
gation, eliminate the e ffec ts  o f the former /  
dual, system  and prevent resegregation. 1
f  2. The defendants are enjoined from op­

erating schools or program s which are ra­
cially identifiable as a resu lt o f  their ac- 
tions. \The Board is not required to main­
tain the current student assignm ent plan of 
attendance zones, pairings, m agnet schools 
or programs, satellite zones and grade-level 
structure. Before m aking any changes, 
the Board m ust consider specific data 
showing the e ffec t o f  such changes on the 
projected racial/ethnic composition o f the 
student enrollm ent in any school affected  
by the proposed change. The Board must 
act to assure that such changes will not 
serve to reestablish a dual school system.

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

L i- The duty imposed by the law and by 
this interim decree is the desegregation of 
schools and the maintenance of that condi­
tion. |  The defendants are directed to use 
them expertise and resources to comply 
with the constitutional requirement of 
equal educational opportunity for all who 
are entitled to the benefits of public edu­
cation in Denver, Colorado.

5. The District retains the authority to 
initiate transfers for adm inistrative rea­
sons, including special education, bilingual 
education and program s to enhance volun­
tary integration. The defendants shall 
maintain an established policy to prevent



1517THERRIEN v. UNITED AIR LIN ES, INC.
Cite u  670 F-Supp. 1317 (D.CoJo. 1987)

the frustration, hindrance or avoidance o f  a 
District student assignm ent plan through  
parent initiated transfers and shall use ad­
ministrative procedures to investigate, val­
idate and authorize transfer requests using  
criteria established by the Board. If trans­
fers are sought on grounds o f “hardship”, 
race, color or ethnicity will not be a valid 
basis upon which to demonstrate “hard­
ship”. The defendants shall keep records 
o f all transfers, the reasons therefor, the 
race, color or ethnicity o f the student, and 
o f  the effects on the population o f  the 
transferee and transferor schools.

6. N o student shall be segregated or 
discriminated against on account of race, 
color or ethnicity in any service, facility, 
activity, or program (including extracurric­
ular activities) conducted or sponsored by 
the school in which he or she is enrolled. 
All school use or school-sponsored use o f  

'athletic fields, meeting rooms, and all other 
school related services, facilities and activi­
ties, and programs such as commencement 
exercises and parent-teacher m eetings 
which are open to persons other than en­
rolled students, shall be open to all persons 
without regard to race, color or ethnicity. 
The District shall provide its resources, ser­
vices and facilities in an equitable, nondis- 
criminatory manner.
U ,  The defendants shall maintain pro­
grams and policies designed to identify and 
remedy the effects o f  past racial segrega­
tion. I

8. The defendants shall provide the 
transportation services necessary to sa tisfy  
the requirements o f this interim decree not­
withstanding the provisions o f  Article IX, 
Section 8 o f the Colorado Constitution.

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

(B). S taff members who work directly 
with children, and professional s ta ff  who 
work on the administrative level will be 
hired, assigned, promoted, paid, demoted, 
dismissed, and otherwise treated w ithout 
regard to race, color or ethnicity.

(C). D efendants are required to use an 
effective  affirm ative action plan for the 
hiring o f  minority teachers, sta ff and ad­
m inistrators with the goal o f attaining a 
proportion which is consistent with the 
available labor force; the plan shall contain 
yearly tim etables and a reasonable target 
date for the attainm ent o f the affirmative 
action goals.

10. The District will continue to imple­
m ent the provisions o f the program for 
limited English proficiency students hereto­
fore approved by the Court in the Lan­
gu age  R ights Consent Decree o f A ugust 
17, 1984. N othing in this interim decree 
shall modify or a ffec t the Language Rights 
Consent Decree o f  A ugust 17, 1984, and 
the prior orders entered in this case relat­
ing thereto shall remain in full force and 
effect.

11. It is further provided that this inter­
im decree is binding upon the defendant 
Superintendent o f Schools, the defendant 
School Board, its members, agents, ser­
vants, em ployees, present and future, and 
upon those persons in active concert or 
participation with them  who receive actual 
notice o f  this interim decree by personal 
service or otherwise.

12. This interim decree, except as pro­
vided herein, shall supersede all prior in­
junctive orders and shall control these pro­
ceedings until the entry o f a final perma­
nent injunction.

(o | U1 NUMMt miw)V- 2 Ar

Robert TH ERRIEN, P laintiff, 
v.

UNITED AIR L IN E S, INC., a foreign  
corporation , Defendant.

Civ. A. No. 87-A -37.

United States District Court,
D. Colorado.

O ct 7, 1987.

Pilot brought action against airline, 
challenging his dismissal. On airline’s mo-



/

CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing Brief for the

United States as Amicus Curiae and Addendum on all parties of
this case by mailing two copies to the following addressees:

Norma V. Cantu, Esq.
Mexican American Legal Defense 

& Educational Fund 
28 Geary Street
San Francisco, California 94108
Steven Fedo, Esq.
Friedman & Koven
208 South LaSalle Street
Chicago, Illinois 60604
Gordon G. Greiner, Esq.
Holland & Hart
P.O. Box 8749
Denver, Colorado 80201
Michael H. Jackson, Esq.
Conklin & Adler, Ltd.
1611 Lincoln
Denver, Colorado 80203
James M. Nabrit, III, Esq.
NAACP Legal Defense &

Educational Fund, Inc.
99 Hudson Street
New York, New York 10013
Kenneth B. Siegal, Esq.
Sherman & Howard
633 Seventeenth StreetSuite 2900
Denver, Colorado 80202 

This 13th day of April, 1988.

MARK L. GROSS 
Attorney



40 Nos. 83-2044, 83-2065 and 83-2126

W OOD, Circuit Judge, concurring. I join in Judge 
Cudahy’s thoughtful analysis of this vexing legal and 
practical problem. However, there is one aspect about 
which I have some small degree of reservation.

Judge Cudahy’s opinion takes note that in defining a 
minority ward, other courts’ use of the 65% figure has lent 
weight to the understanding that the figure should be em­
ployed as a widely-accepted guideline. It then is suggested 
that the record must persuasively support any rejection 
of the 65% guideline. That other courts at other times for 
other places have adhered to the 65% figure, however, 
does not satisfy me that on the record of this case, the 65% 
figure is entitled to that much respect.

I would emphasize that passage of Judge Cudahy’s 
opinion holding that the district court’s abuse of discretion 
lay in its failure to consider carefully the factors underly­
ing other courts’ use of the 65% guideline as the factors 
may apply in these minority communities, including con­
sideration of the dynamics of political change now occur­
ring in Chicago. Everything suggests that these local 
political changes involving active, increasing, and success­
ful minority political participation will continue. I believe 
in the constancy of that encouraging trend more than I do 
in the 65% figure.

Too much super-majority help could, at the expense of 
non-minorities, even become a disincentive to minorities 
in any effort to overcome past deficient political 
participation. I concur, however, that some percentage ad­
justment may be justified in some wards at this time, but 
only with the expectation that any adjustment will serve 
only as a temporary educational stepping stone for minori­
ties in reaching their full political potential.
A true Copy:

Teste:

Clerk o f the United States Court of 
Appeals for the Seventh Circuit

USCA 40227—Midwest Law Printing Co., Inc., Chicago—5-17-84—400



Nos. 83-2044, 83-2065 and 83-2126 39

In summarizing the guidelines which the district court 
should apply in fashioning a suitable remedy, we note the 
following criteria. First, the retrogression in the number 
of wards in which blacks have a reasonable opportunity to 
elect a candidate of their choice should be eliminated by 
establishing an effective black majority in at least nine­
teen wards. The district court should determine, in its 
discretion, whether it is possible to create four wards 
with an effective majority of Hispanics. Second, the 65% 
guideline as the measure of an effective majority should 
be given the careful consideration which experience in 
voting rights litigation over many years shows to be 
appropriate. I t  should not be rejected for reasons which 
fail to take account of the electoral facts. However, it 
would also properly be within the district court s discre­
tion upon remand to take additional evidence about the 
statistical data which are available and other relevant 
materials. Where voting age population statistics are 
available and found by the district court to be reliable, 
these may be used in place of total population statistics. 
The 65% guideline means that the relevant minority 
group should have an approximate 65% majority of total 
population or 60% majority of voting age population. In 
those wards in which a significant proportion of Hispanics 
are Mexican-Americans, 5% should be added to constitute 
an effective majority in order to adjust for the admixture 
of non-citizens.

For the foregoing reasons, the decision of the district 
court is affirmed in part, reversed in part, and remanded 
to the district court for reconsideration of the remedy in a 
manner consistent with this opinion, and Circuit Rule 1 
shall apply. 22

22 continued
tion sought in Rybicki II, 574 F. Supp. at 1149, l 1 
addition, retrogression within a voting district 
under many circumstances require a remed’ 
matters, we believe, should be viewed within thr 
circumstances.



38

s s n s i s s s s s c t s s s f  “
We! however, believe that this

gression within wards, helieve there is no vestedof this case, is unjustified. We behev^there ^
right of a ™™F'‘y / tr„ °X ^ ro v S to n  of a reasonable op- 
magnitude unrelated to th P , well-recognized
portunity to elect a represen maiorities exceeding
principles. In addition, The M andate of section 2
65*- 70% may result V t  W esmust be given 
of the Voting Rights Act is that nun 1 „f their
a reasonable and t a r  ctance toetoet ̂  and judicial 
choice. As previously stated, exp F adequate to
precedent indicate that the f5*  g m d eh n ^  u
ensure this reasonable opportutu^^The u s e ^  Act als0
tive guideline to M M ‘ the^x ten t compatible with 
removes the federal courts, statutory rights, from
maintenance of constitutiona what is essentially a
detailed and subjeetive scru y Qf a cohesivelocal pohtical process. Whale the frac tm m g  some

community may be 'in authorized to correct
circumstances, unlawful, a minority to
it here unless the reaso^W e ^  gtake A
elect representatives °f *ts Ĉ 0 er to mandate that
similar limitation applies to our P & ticular ward 
the size of a nunority gr P , gs sbould be followed 
never be decreased. Thes® PP broad and inflexi-
in order to achieve the goataofthe Act, ^
ble strictures against " ^ tu r in g  ^  direct elector.
ties within individual war , burden on the draft-
al effect, might impose an event, a d iff­
ers of a redistricting plan in what is, in an>
cult task.22

Nos. 83-2044, 83-2065 and 83-2126



37

majority wards (two on the Southwest Side and two on 
the Northwest Side) which would have a concentration ot 
Hispanics greater than that of any individual 
1980 under the 1970 map. See supra n.2. Since the 1970 
map apparently fractured the Hispanic community limit­
ing the remedy for Hispanics to their situation under the 
1970 map might merely perpetuate the vote dilution o 
the past. Therefore, instead of merely applying the nonre­
trogression rule to the Hispanic population, the district 
court should examine whether four wards can be created, 
each with a sufficiently large majority of Hispanics to 
provide the Hispanics with a reasonable opportunity to 
elect candidates of their choice. Of course, neither Hispan­
ics nor blacks have a statutory or constitutional right to 
proportional representation.

The appellants also allege that there are additional 
errors in the court-approved map and ask that we order 
these errors be remedied on remand. First, appellants 
point to their allegations of fracturing of the black and 
Hispanic communities and ask that “some or all ot the 
wards that touch the black-white border” be redrawn as 
well as many of the Hispanic wards. Appellants’ brief at 
79-80. Second, appellants ask that retrogression within in­
dividual wards be remedied. According to this request, 
any retrogression in the size of a black majority or plurali­
ty within a w'ard should be eliminated and the size of the 
minority population restored to what it was in 19S0 under 
the 1970 map. See Moore v. Leflore County Board, of Elec­
tion Commissioners, 502 F.2d 621, 624 (5th Cir. 1974) 
(reduction of black majorities from the 69-78% range to 
the 55-60% range found impermissible because extent of 
each majority w'as less than in pre-redistricting plan 
Buskey v. Oliver, 565 F. Supp. 1473, 1482-84 (M.D. ^ 
1983) (reduction of black majority within one ward f 
84.2% to 68% held to constitute retrogression and a s'
2 violation). In some cases, such as in the 37th Wa- 
would mean the restoration of a majority which 
greater than the 65% guideline (in the 37th 
majority of 76.4%); in other wards, it would me

Nos. S3-2044, 83-2065 and 83-2126



40 Nos. 83-2044, 83-2065 and 83-2126

W o o d , Circuit Judge, concurring. I join in Judge 
Cudahy’s thoughtful analysis of this vexing legal and 
practical problem. However, there is one aspect about 
which I have some small degree of reservation.

Judge Cudahy’s opinion tabes note that in defining a 
minority ward, other courts’ use of the 65% figure has lent 
weight to the understanding that the figure should be em­
ployed as a widely-accepted guideline. It then is suggested 
that the record must persuasively support any rejection 
of the 65% guideline. That other courts at other times for 
other places have adhered to the 65% figure, however, 
does not satisfy me that on the record of this case, the 65% 
figure is entitled to that much respect.

I would emphasize that passage of Judge Cudahy’s 
opinion holding that the district court’s abuse of discretion 
lay in its failure to consider carefully the factors underly­
ing other courts’ use of the 65% guideline as the factors 
may apply in these minority communities, including con­
sideration of the dynamics of political change now occur­
ring in Chicago. Everything suggests that these local 
political changes involving active, increasing, and success­
ful minority political participation will continue. I believe 
in the constancy of that encouraging trend more than I do 
in the 65% figure.

Too much super-majority help could, at the expense of 
non-minorities, even become a disincentive to minorities 
in any effort to overcome past deficient political 
participation. I concur, however, that some percentage ad­
justment may be justified in some wards at this time, but 
only with the expectation that any adjustment will serve 
only as a temporary educational stepping stone for minori­
ties in reaching their full political potential.
A true Copy:

Teste:

Clerk o f the United States Court o f 
Appeals for the Seventh Circuit

USCA 40227—Midwest Law Printing Co., Inc., Chicago—5-17-84—400



39Nos. 83-2044, 83-2065 and 83-2126

In summarizing the guidelines which the district court 
should apply in fashioning a suitable remedy, we note the 
following criteria. First, the retrogression m the number 
of wards in which blacks have a reasonable opportunity to 
elect a candidate of their choice should be eliminated by 
establishing an effective black majority in at least nine­
teen wards. The district court should determine, in its 
discretion, whether it is possible to create four wards 
with an effective majority of Hispamcs. Second, the b5/o 
guideline as the measure of an effective majority should 
be given the careful consideration which experience in 
voting rights litigation over many years shows tci be 
appropriate. I t should not be rejected for reasons which 
fail to take account of the electoral facts. However, it 
would also properly be within the district court s discre­
tion upon remand to take additional evidence about the 
statistical data which are available and other relevant 
materials. Where voting age population statistics are 
available and found by the district court to be reliable, 
these may be used in place of total population statistics. 
The 65% guideline means that the relevant minority 
group should have an approximate 65% majority of total 
population or 60% majority of voting age population. In 
those wards in which a significant proportion of Hispamcs 
are Mexican-Americans, 5% should be added to constitute 
an effective majority in order to adjust for the admixture 
of non-citizens.

For the foregoing reasons, the decision of the district 
court is affirmed in part, reversed in part, and remanded 
to the district court for reconsideration of the remedy m a 
manner consistent with this opinion, and Circuit Rule 18 
shall apply. 22

22 continued
tion sought in Rybicki II, 574 F. Supp. at 1149, 1154-58. In 
addition, retrogression within a voting district might well 
under many circumstances require a remedy. All these 
matters, we believe, should be viewed within the totality of the 
circumstances.



A

OO

S S I
We, however, believe t t a t  ^ ^ “ K c ^ ^ c e s  

gression within war > believe there is no vested

a representative

of the Voting Rights Act ts that ™ nor / t h e g
a reasonable and fan ctance to.elect, cand ^ ^  
choice. As previously s-tated, ®*p idJ L ^  is adequate to 
precedent indicate that the «  M
ensure this reasonable’ “f ^ i r n t y / T t e  ^  ^
tive guideline to fulf tn the extent compatible withremoves the federal courts, to the extent co from
maintenance of co n stitu tio n a l“d st^ “ 'g  esf entially a
detailed and subjective scr■ yuf t uring” of a cohesive
local political process. While the fracturing some
community ™ay be un < authorized to correct
circumstances, unlawful, nDDOrtunity of a minority toit here unless the reasomble o p p o r t^ ty  o ^  ^  A
elect representatives of itsi cho  ̂ ^  Mandate that
similar limitation applies L  particular ward
the size of a ^ r S e f e  a p p ro a c h  shoSd be foUowed 
never be decreased These approac mflexi-
in order to achieve the goals^fthe Act, ^
ble strictures against fracturing ^  direct elector.
ties within individual wards^wluch ^ i th draft-
al effect, might impose an event, a d iff­
ers of a redistnctmg plan m what is, m
cult task.22

22 Of course, in this very case, J ^ y ^ / t h e  Hispanic plain- 
appropriate we are proposingarem edy for th . P ^ ^ .

* ‘h= ™ dlfica'
P a c k i n g  ( r o o t n o U ,  u „ 4  o n  f o l lo w in g  P » g e >

Nos. 83- 2044, 83- 2065 and 83-2126

I



37

majority wards (two on the Southwest Side and two on 
fhe Northwest Side) which would have a concentration of 
Htapanics greater than that of any individual wards in 
1980 under the 1970 map. See supra *.2. Since 1970 
maD apparently fractured the Hispanic community, limi 
ingPthePremedy for Hispanics to their situation under the 
1970 map might merely perpetuate the vote dilution of 
the past. Therefore, instead of merely applymg the nonre­
trogression rule to the Hispanic population, the district 
court should examine whether four wards can be created 
each with a sufficiently large majority of Hispanics to 
provide the Hispanics with a reasonable opportunity to 
elect candidates of their choice. Of course, neither Hispan­
ics nor blacks have a statutory or constitutional right to 
proportional representation.

The appellants also allege that there are additional 
errors in the court-approved map and ask that we order 
these errors be remedied on remand. First, appellants 
point to their allegations of fracturing of the black and 
Hispanic communities and ask that some or all of the 
wards that touch the black-white border be redrawn as 
well as many of the Hispanic wards. Appellants bnet at 
79-80. Second, appellants ask that retrogression within in­
dividual wards be remedied. According to this request, 
any retrogression in the size of a black majority or Pll^ali- 
ty within a ward should be eliminated and the size of the 
minority population restored to what it was in 1980 unde 
the 1970 map. See Moore v. Leflore County Board of Elec­
tion Commissioners, 502 F.2d 621, 624 (5th Cir. 1974) 
(reduction of black majorities from the 69-78/6 range to 
the 55-60% range found impermissible because extent oi 
each majority ŵ as less than in pre-redistrictmg plan), 

Buskey l.Oliver, 565 F. Supp. 1473 , 1482-84 (M.D Ala. 
1983) (reduction of black majority within one ward from 
84.2% to 68% held to constitute retrogression and a section 
2 violation). In some cases, such as m the 3 / th \ \  ard, this 
would mean the restoration of a majority which is even 
greater than the 65% guideline (in the 37th Ward, a 
majority of 76.4%); in other wards, it would mean the res-

Nos. S3-2044, 83-2065 and 83-2126



36
,  „  j _ w;th  a m inority popula-

consider th a t  the  m m ber-of th“  number w hichex-
tion m ajority  should be «stt>  m ap. This means *  '
isted in 1980 under the 19 babiy four m ajority
teen  black m ajority  w ard^mp aut bority  tha t, m term s of 
Hispanic w a rd .. T t a r e : ^  a^utho y ^
general principles, instead may be neare
permissible remedy but Texas u. United
minimum. See City o f Port ^  ^  (D.D.C; 1981) 
States, 517 F. Supp--t  R easo n ab le  to fix the m w iiJ J J
(three-judge panel) tbe new plan at the
level of representation und t the former plan )
achieved by the same vote that the remedy
(emphasis added). W e be » e In any event, the pre-
dse^rem ed^'rn^t ae^es^anly b^a matter^or^the^giscre^

w a rd s ’ 316 mdiscretionary than others- ion ^  considerably
The situation of the ^ p^  tb ePblack population. The 

more complex than tha not nearly as concentrat
Hispanic population is genera y ° opuiation, although 
^  s e g re g a te d .a re £ .J»  the b ^ e s  such as Piken 
there are cohesive H^sp intact would form signif
axid Little Village which, if voters. Hispamcs
cantly high concentrate J  J?ole m the political prm 
have occupied a much less visio ^  until the 1980
cess in Chicago than ha\ even to count Hispamcs
census, little attem pt was ma Th fore> in order to

i T s U ^ ” 48TThis failure cast some
HisDanics as a discrete ethru ^970 warg map as an m-
doubt on the ' ^ ‘ T S e M t T t o w H c h  the Hispanic community

Nos. 83-2044,83-2065 and 83-2126



A

1

A5

Nos. 83-2044, 83- 2065 and 83-2126 35

more difficult to determine precisely which wards in the 
Hispanic community will need adjustments to satisfy 
these criteria, but those f a th e r  sC T ut^  by the
district court include the 25th, 22nd, 26th, h, > 
32nd, 33rd, and 35th Wards with possibly some attention
to the 1st and 12th Wards.19 20
3. City-wide Retrogression.-. In accord with our earlier dis­
cussion of city-wide retrogression in the number ol 
minority wards as constituting a section 2 violation, we

19 continued
Def Exs. II, 71 and 2611. The district court evidently did not 
require any alteration in the composition of the 7thW ard 
under the City Council map apparently because the 58.4% 'or 
58% of voting age population) black majority met its criterion 
for a black majority ward. Here, however, we think the pre­
scribed adjustment should be keyed at least to a restoration of 
the 62.6% or 63.1% of voting age population which was the 
black population actually achieved under the 1970 map^ Under 
the particular circumstances applicable to the 7th Ward, there 
seems to be less need, or possibly justification, for specific con­
sideration of a goal of 65% of total population However, we 
leave the ultimate details of this adjustment to the discretion ol 
the district court.
20 The statistics for the Hispanic population of the latter five 
of these wards were previously presented. Supra n14 and ac­
companying text. Those for the other wards are as follows:

Court-approved Map

65.4 (59.5)
20.6 (18.1)
75.6 (69.0)
19.3 (15.7)

Def. Exs. II, 71 and Zbil. li, as unaer one arguable approach, 
see note 19 supra, correction of retrogression were keyed, or 
limited, to percentages actually achieved under the 1970 map, 
there might be some question what more can be done lor the 
Hispanic wards on a retrogression basis. We believe, however, 
that the Hispanic wards may be viewed in other than a retro­
gression context, as will be discussed below.

Ward 1970 Map City Council Map

25 51.1 (44.9) 52.6 (46.2)
1 35.6 (31.5) 30.7 (27.1)

22 62.8 (56.7) 64.9 (59.9)
12 11.4 (9.3) 32.0 (25.8)

I



34

court in approving the plan which is before us now. W e, of 
course recognize that this additional 5% allowance is an 
approximate goal which is subject to adjustment for good 
cause shown. We also recognize that, with emerging 
changes in sociological and electoral characteristics of 
minority groups and with broad changes la political 
attitudes, both the 65% figure and the additional 5% figure 
may have to be adjusted in the future to reflect new infor­
mation and new statistical data.18

In giving emphasis to the 65% figure of 
or its^equivalent, something on the order of 60% of voting 
age population, we recognize that at least three wards 
the black community will need to be redrawn in order 
eliminate the retrogression of the aPProveJ Tt ^
These wards are the 15th, 37th, and 7th W ards.18 It is

Nos. 83-2044, 83-2065 and 83-2126

is For example, we note that the Rev. Jesse Jacksons 1984 
presidential candidacy has apparently stimulated blaek reg^  
tration and turn-out nationally. More specific to Chicago, we 
understand that the November 1982 gubernatorial “
Illinois and the 1983 Chicago mayoral election indicated a 
marked increase in black registration and turn-out. If these 
and other elections should demonstrate a significant and consis-̂  
tent change in voting behavior in Chicago, there would have to 
be a corresponding change in redistnctmg practices and legal 
standards, although the results of these elections do.not yet 
seem adequate to justify an abandonment of this guideline at 
this juncture. It initially remains within the discretion of the 
district iudee however, to determine when such a consistent 
pattern has emerged and when adequate and reliable statistics 
concerning minority voter registration and turn-out axe availa­
ble to establish that such a modification of the applicable guide­
line has become appropriate.
19 The statistics relating to blacks for the 15th and 37t.h
Wards were previously presented. Supra n-14
ing text. The percentages of black population for the / th W ard
are as follows:

1970 Map City Council Map 
58.4 (58.0)62.6 (63.1)

(F o o t n o t e  c o n t in u e d  o n  f o l lo w in g  p a g e )

Court-approved Map 
58.4 (58.0)



33Nos. 83-2044, 83-2065 and 83-2126

referred to approvingly in the recent Chicago state 
legislative redistricting decision, Rybicki I, 574 F. Supp. 
at 1113 n.87, and the congressional redistricting decision, 
In re Illinois Congressional Districts Reapportionment 
Cases, No. 81 C 1395, slip op. a t 19 (N.D. I1L Nov. 23 
1981), a f f d  sub nom. McClory v. Otto, 454 U.S. 1130 
(1982). The 65% figure was adopted in State o f Mississippi 
v United States, 490 F. Supp. 569 (D.D.C. 1979) 
(three-judge panel), a f f d  444 U.S. 1050 (1980), where 
the court stated that

[i]t has been generally conceded that, barring excep­
tional circumstances such as two white candidates 
splitting the vote, a district should contain a black 
population of at least 65 percent or a black VAP of at 
least 60 percent to provide black voters with an op­
portunity to elect a candidate of their choice.

490 F. Supp. at 575. The Supreme Court, in United Jewish 
Organizations o f Williamsburgh, Inc. v. Carey, 430 U.S. 
144 (1977), held that “it was reasonable for the Attorney 
General to conclude in this case that a substantial non­
white population majority—in the vicinity of 65%—would 
be required to achieve a nonwhite majority of eligible 
voters ” Id  a t 164 (emphasis in original). See also Gingles 
v. Edmisten, No. 81-803-CIV-5, slip op. at 24-25 and n 21 
(E.D.N.C. J a n  27, 1984) (three-judge panel) ; The Dilem­
ma of the Voting Rights Act, supra m2, at 1615 m3; Alter­
native Voting Systems, supra ml3, at 146 ml3.

In light of these expert opinions, judicial precedents 
and the policy and practice of the Department of Justice 
in administering the Voting Rights Act, we believe that, 
in scrutinizing a redistricting plan for fairness to minority 
groups, the 65% figure as a guideline should be given the 
most careful consideration In the case of Hispanic minori­
ty groups having large  numbers of noncitizens 
(Mexican-Americans), we approve of the district court’s 
announced principle that an additional 5% allowance 
should be made for noncitizenship. We shall require that 
this additional 5% guideline be taken into account more 
faithfully on remand than it apparently wTas by the district



32

the election of a minority candidate, there is an histonca 
p a tte r^  illustrated by the 6th, 8th, 9th, 16th and 17th 
wards of the election of a minority candidate once th 
minority population approaches the 65%- / 0 / o  range within
aw ard. Tr. 2204.17

Numerous courts have either specifically adopted or 
tacitly approved the use of this 65% figure.

Nos. 83-2044, 83-2065 and 83-2126

17 Another of plaintiffs’ witnesses, Dr. Hauser, testified that 
tVip fW/ euideline does not guarantee that a particular min y 
troup wfflbe M e  to elect a candidate of its choice m any par-̂  
dculL circumstance (Tr. SOS), and the district judge relied on 
this uncertainty, to some extent, in rejecting the use of the 6o o 
flgureNThis un^rtainty may be illustrated by ^ r a g t * * *  
March 1982 primary election for the new Illinois State Senate 
District 18 which was redrawn as a result of Rybickil to m 
l rlo a minority population. In that election black cand 

d a ts  w&fe UBSUccessfuHn their efforts to unseat the whhe u> 
cumbent Senator. Rybtcki 11, 574 F S “p p tf 
example disen-
francthsing the remaining 35% of the population or of removing 
from the 65% of the population the aPpr°p” aŝ ffl“ “ " " j
S S T i l f  aT o ten S V s?  ofThe vote. The 65% guideline is to-

will have t^b^^odi^ed^ccordingly^See also 0f
company mg text nr^Sdent, which will be discussed
below! suggest ISaVwe c ln tS e  to be guided by this 65% Stan- 
dard or some approximation of it.



31

A guideline of 65% of total population has been adopted 
and maintained for years by the Department of Justice 
and by reapportionment experts and has been specifically 
approved by the Supreme Court m circumstances com­
parable to those before us as representing the Proportion 
of minority population reasonably required to ensure 
minorities a fair opportunity to elect a candidate of their 
choice. This figure is derived by augmenting a simple 
maiority with an additional 5% for young population, 5% 
S r  low voter registration and 5% for low voter turn-out 
for a total increment of 15%. This leads to a total target 
figure of 65% of total population. Obviously if voting: age 
population statistics are used 5% would drop out of the 
formula, leaving something m the vicinity of 
age population as the target percentage Appellmits 
afgueP in addition, that a further 5% should be allowed m 
Z  tekst certain Hispanic wards of largely Mexican- 
American composition to adjust for the numbers of 
Hispanic noncitizens; this factor was accepted m principle 
by the district court although apparently not followed m
practice.

During the trial, witnesses for both sides testified tha 
65% of total population is a widely recogmzedandaccept- 
ed criterion in redistricting formulations^ Kimball Brace, 
one of defendants’ expert witnesses, stated:

One of the factors that is involved in any sort of redis- 
tricting activity and in the general knowledge of an 
experienced redistricter is that there are some over­
all criterias [sic] that have been laid down m the 
redistricting field and what is necessary ' 
minority district. Those were outlmed at the outset 
in the Williamsburg case in the early 1970 s. General­
ly it talks about a 65 percent minority population. 
That is derived from the 50 percent total population^ 
adding five percent for each of the three factors that 
are voting age population, because minorities tend to 
have a lower voting age population, lower registra­
tion patterns and a lower turnout pattern.

Nos. 83-2044, 83-2065 and 83-2126



30

o elect a  representative!rftheir^choice The
" ,h»t 6^ 0? totol^opulation (or its equivalent) 

standing that bo/o ot t  “ • dpfming a minority
should be employed as a g^  d not persuasively
district. The record here A deline, and

reconsidered.

- s * s S i S S = 2
tion and by good motivation andwhich can be fully recimeu uj & , rPrt ainlv

hefps^o™ ^0 status,U*CW^h 
stances of low incom , mobility. I t  is
unemployment, poor_ e ucaio papulations are less
only common sense tha g y failure to meet
likely to vote because, ^ te r  aha^ of S t r i c t  court 
residency requirements, n 4 1 12  13) the Chicago
actually noted m tins « 1 L  Near Southwest

in the 26th and 32nd Wards, respectively.

‘i f  A cc^ding^the 1 9 8 ^ u s
of blacks and 57.0% ot H p registered to vote inQ<JPS 0f individuals reporting they were reg^ Tlages 01 inmviuu*“  J0/ =.60 0%; Hispanics-3b.d%. me
1980 are: whites-684% b l a c k s th’ had actually voted m

S S o S u S S " *  - . 2 ,  499 
(1981).

Nos. 83-2044, 83-2065 and 83-2126



29

Td DC U19^l Tl t hr?ea j u d g e S u S n g  voting age 
population statistics) ^ n  the cbm before:

total population and voting g f ̂  p ter than the 5%

S f o "  " t o  data instead of employing 5%
as a uniform corrective.

2W Ud  The

nothing m the recor which will be discussed m

- S S S B f s s s s s s

e £ s % = : s s e s
proorirng ™ n t “ Sr ” entational rights in a form which 
; am T o t° in tc "  provide them with a realistic opportumty * 37

%  09" doAheTodtS  p ^ n T o n  bToriy 5?6% 
blacks constitute 60 09 j° ^ deferential of 7.49%. In Ward of the voting age population^ a ddterent^ 61.65% of
37, under the court- approved population, a
the total population an variation from the 5%
differential of 5.45*. D d .E* 4blk ^  different ^  other
figure is not great and t ‘ to use actual statistics m

-ailabie and reiiabie.

Nos. 83-2044, 83-2065 and 83-2126



28

28 " *

Pri t  is not, however, the proper ro1®

j S S S r s e H S S s
establish certain guidelines to assist the dist 

propriate remedy.
1 Nse of Voting Age Population Statistics: The district 
co r£ ad ap ted  vS tirl age
measure of minority voting strength. This is pertecuy un 
derstandable since being of age is a leg er
voting. Because minority groups generally have ayo™ ge

f e s s  " S ‘S f  S
S e r t ^ ^ t T  W d T  total population figure^

S k t Vc o S  a T e p ^ Ptheam ° i  reh ^ b S .V se e ri rasonabte 
for such data to be used in evaluating nunonty 
strength instead of merely using a standard adjustment 
to total population. See City o f Rome u. f /m ^ S to ie s 4 4 6  
TJ S 156 186 n.22 (1980) (voting age population statistics 
are “probative^because they indicate the electoral poten­
tial 0Pf the minority community"); City o f Port Arthur,

Nos. 83-2044, 83-2065 and 83-2126



27

also suggested a 54% majority for Hispanics in the 32nd 
Ward fir 4113), but the court-approved map provides 
L  only 38.8%. Finally, the 31stW ard which w asto  have 
no change according to the trial judge (Tr. 4113), has a 
duction from 52.41% to 50.6% in the court-approved map.

Tn undertaking our review of the remedy ordered by 
thed istri^ t court, we take note of the comments m the 
Senate Report concerning the 1982 amendments to t  e 
Voting Rights Act which adopt

ftlhe basic principle of equity that the remedy fash­
ioned must be commensurate with the right that has 
been violated . . . .  The court should exercise its tradi­
tional equitable powers to fashion the relief 50 that it 
completely remedies the prior dilution of minority 
voting strength and fully provides equal opportunity 
for minority citizens to participate and to elect candi 
dates of their choice.

Senate Report at 31 (footnote omitted). The Supreme
Court has stated, in reviewing a f  ^ w ^ t t e c o m l  h ^  voting rights discrimination context, that the court 
notm erely the power but the duty to render a decree 
which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like
future.” Louisiana (^ 7) ^  Sm
(1965). In Connor v. Finch  431 U.S. 407 (1977)> the 
preme Court articulated the standard of review as

whether the District Court properly exercised its 
equitable discretion in reconciling the requirements 
of the Constitution with the goals of ^ t e p o M ic ^  
policy. . . .  In such circumstances, the court s task is 
Inevitably an exposed and sensitive one that must be 
accomplished circumspectly, and m a manner Jree  
from any taint of arbitrariness or discrimination.

Id. at 414-15 (quoting Roman v. Sincock, 377 U.S. 695, 
710 (1964)).

Under this exacting standard, we find that the court- 
approved map has not provided an adequate remedy for 
the Voting Rights Act violation because it does not

Mos. 83-2044, 83-2065 and 83-2126



26

T h ^ c h o S  °pportunit>' t0 for a candidate of 
Tr. 4110-11.

Following the district court’s finding of liability the 
Wtere order®d to draft a new map in accordance 

h the criticisms and guidelines as articulated by the 
court and the district court subsequently approved this 
map^The only significant changes in this new L p  f or t t e  
in two“ X f , „ r s  restoration of black majorities

War_d —1970 Map City Council Map Court-approved Map

Nos. 83-2044, 83-2065 and 83-2126

15 66.36 (59.99)14
37 76.39 (72.42)

41.69 (34.59) 
36.84 (31.21)

60.09 (52.6) 
61.65 (56.2)

Appellants’ brief a t 47; Def. Exs. II, 71 and 2611 The

H ^ a S f Z d s  maP Sh°WS 41,6 f°ll0Wing Ch2ngeS f°r the
^ r d  j ? 70 Map City Council Map Court-approved Map

22
25
26
31
32

62.8 (56.7) 
51.1 (44.9) 
50.7 (41.9) 
53.6 (48.4)
47.9 (40.2)

64.88 (59.88) 
52.56 (46.19) 
52.34 (43.68) 
57.26 (52.41) 
47.23 (39.59)

75.55 (69.0)
65.37 (59.5) 
58.83 (50.0)
57.38 (50.6) 
46.3 (38.8)

Appellants brief a t 48; Def. Exs. II, 71 and 2611. In the 
, ^ f t '.aPProved map- the Hispanics have, as the above
26the W a1da tT ^ ° nlyi,50%uOf votinS-age Population in the 
d e ^ J f T S I t h o u g h  in that ward the court had ordered 
defendants to provide a population “in the vicinity of a 55

' i ’ to accomm°date the fact that many 
ot them [Mexicans] are not citizens and haven’t had a 
chance to become citizens” (Tr. 4112-13). The court had

population C‘V A P ”f arentheSiS âre percenta&es of voting age 
tion (“T P ”) A P  ’ 0PP°sed to percentages of total popula-



25Nos. 83-2044, 83-2065 and 83-2126

before us, the district court adopted the use of voting age 
population statistics as the fairest and most equitable cri­
terion for minority group strength in the evaluation of a 
redistricting plan under section 2 (Tr. 4106). The district 
court rejected for most wards the use of any majority 
greater than 50% of voting age population as a threshold 
for determining an effective majority of blacks or 
Hispanics. In some of the Hispanic wards the court did set 
a higher figure to correct for the relatively high number 
of non-citizens. In rejecting the general use of a greater 
than 50% majority of voting age population, the court
stated:

there is no statistical or objective evidence in the 
record that a minority is entitled to or should have 
more than a majority of the voting age population m 
order to have a reasonably fair opportunity to vote 
for candidates of their choice or even to elect candi­
dates of their choice.

Tr 4109 The district judge also relied on testimony of 
defendants’ expert witnesses that minority groups will 
register and vote in sufficiently large numbers when the 
proper incentives are present and that Jilntelligence or 
economic standings in the community are variables 
which are statistically unsupported m the record and 
should not be considered. The district judge therefore
chose to

disregard and discard the rule of thumb that has 
been talked [sic] by various witnesses that 65 percent 
of a minority is necessary in order to control a ward 
or, to put it another way, to give the voters in that * v.

13 continued rr.
US at 766; Whitcomb v. Chavis, 403 U.S. at 149-50; Zimmer
v. McKeithen, 485 F.2d at 1304-05 (“where the petitioner can 
demonstrate that ‘its members had less opportunity than did 
other residents in the district to participate in the political pro­
cesses and to elect legislators of their choice . . such district­
ing schemes are constitutionally infirm ) (quoting White v. 
Regester, 412 U.S. at 766).



24 Nos. 83-2044, 83-2065 and 83-2126

sion based on a comparison of the number of black and
S 70 and ? lura,lty wards 111 1980 under the1970 map with the number of such wards under the 1981
map n-2- The guidelines established by the disirTct
court for the redrawing of the map therefore conSted 
5 ™ lly of restormg blacks to a simple majority of the 

otmg age population in mneteen (instead of seventeen)
(tT ^ iS)6 T h e ^ r 6? WardS bemg the 37th and !5th■ 7 ' J b f j  d lstnct court also determined that the 
S h t y T i d  (°Tr iT l i l  f ? % £ ,y'0rity 3nd 0ne Plu'
the y22ndd p hy d 31Tshte

adjustments ”
Perhaps the most significant aspect of the district

c o S t iL te ra n  f° imaJati0n was its determination of what constitutes an effective majority for a minority ?roun
Wardi The teSt 0f “ e f f e c t i v e l yfies w i t h ?  of the Population required to provide minori

choice h °PP0rDtunity to elect officials of their
(-r . ‘ v• B °ard o f Supervisors o f Hinds
F2dnt&R°(ltFh r  UPPi'q6S  676 (S-D- Miss- 1975)’ afr<i 528 .2d 536 (5th Cir. 1976), reu’d, 554 F.2d 139 (5th Cir)
(en banc), cert, denied, 434 U.S. 968 (1977).» j n the case

“ tha* a retrogression analysis applied to a minority
P ~ t na rr  representation seems less clearly ap

than 33 aPPhed to a minority having a previous his-
i - / H ? r^ ntatl°a  We think> however^hat the d ^ tS t
wards is corrr2 r tl0n °f With r6Spect to the Hispanic

In more practical terms, an effective majority means “a
choice t o t ) e f f S * M n a f S r enOUghto a"°w *">“•> 
“minority must constitute more t ^ h ^ l f ^ d S r S 's ' t m i U ^  
t,on m order to obtain an effective elector^ nSjoSy 
Alternative Voting Systems as Remedies For Unlawful At 
Large Systems, 9 2  Y A LE L . R e v . 144, 146  n l 3 ( i q « 9 )  
[Alternative Voting Systems]. See also White v. Regester, 412  

(Footnote continued on following’ page)



Nos. 83-2044, 83-2065 and 83-2126 23

the issue of a fourteenth amendment violation despite the 
apparent close analogy between certain of the facts here 
and certain of those in Rybicki I.u

IV
Remedy

Having found that the City Council map resulted in 
racial discrimination and therefore violated section 2 of 
the Voting Rights Act, the district court ordered the 
drafting of a new map. The sole basis for the district 
court s finding of a violation was the city-wide retrogres-

10 continued
aldermanic wards would be neither necessary nor appropriate 
under these circumstances, the relief actually available to plain­
tiffs in this case is the same regardless of whether we reach the 
issue of intentional discrimination. Obviously, a constitutional 
analysis would be required if relief under section 3(c) were in 
question. We note, in addition, that the Supreme Court has re­
cently declined to consider the constitutional basis for a chal- 

4 lenge to an electoral system when an affirmance on the alterna­
tive statutory ground based on amended section 2 would moot 
the constitutional issues presented in the case. Escambia 
County v. McMillan, 52  U.S.L.W. 4 3 9 7  (1 9 8 4 ).

“ Because we do not decide the question of intentional 
discrimination, it is also not necessary for us to consider the 
complex burden of proof questions presented by the alternative 
modes of analysis available in proving intentional discrimina­
tion m cases involving mixed motive discussed at some length 
m Rybicki I, 5 7 4  F . Supp. at 1 1 0 6 -0 8 . See, e.g., Mt. Healthy City 
School District Board of Education v. Doyle, 4 2 9  U.S. 2 7 4  
(1 9 7 7 )  (use of a two-step analysis in which, once plaintiff shows 
a discriminatory purpose was one factor in the challenged 
action, the burden of proof shifts to defendant to show the same 
result would have occurred absent the discriminatory 
purpose); Texas Department of Community Affairs v 
Burdine, 4 5 0  U.S. 2 4 8  (1 9 8 1 ) (use of a three-step analysis in 
which the burden of proof shifts back to the plaintiff to demon­
strate that the defendant’s purported explanation is merely a 
pretext for intentional discrimination).



22

forma] finding that the 1981 City Council map constitute^
raCial ^ c ru n in a tio a  At the time of the

? e p e n d e d eT n 0n,a d ° f remediable vote dilutionpe n d e d  on a d e t e r m i n a t i o n  of i nt ent ional
to t h e T S  R ^ M ° ? dt PI,reviof Iy’ the 1982 amendments ine voting Rights Act have eliminated the requirement
l  & r 11! "  and r t l le f c a n  be h o r d e d  on 
c h L w f  h, ?L lr dmg ° f re su ltan t discrim ination. This
t i « S  whh the^  i, 3PP! f S 40 rt neCt congressional impa- uence with the inherently speculative process of asrrihino-
L T rc tT o n ^ f0^ ™ 6^  imolvmS the complex inLeracuon ot numerous individuals nnrl +■
interests. We think it undesirable to undertake th isT ifff

arS "  uV t ^  Kights Act, wisely eliminated the elusive 
nd perhaps meaningless issue of governmental “purpose” 
rom the calculus of vote dilution claims. There appears to 

be no difference in the practical result or in the avaifabl^ 
remedy regardless of how the resulting discrimination is 
characterized.10 We therefore shall e x p l i S ^ e d d e

they'wdl^be discrimination is foond,

t e J h t T f t A c t Section 3(d Pco-dL t S  T a  four teenth or fifteenth amendment violation is found,
the court, in addition to such relief as it may grant shall 
re^rn jurisdiction for such period as it m ^ S m a p ­
propriate and no voting qualification or prerequisite to 
votmg or standard, practice, or procedure with respect to
t £ ^  dS rent from that “  force or effect at the tinS  
the proceeding was commenced shall be enforced unless 
and until the court fmds that [it] does not have The p ^ s e
T l t T  "T  the effect of dry ing  or abrSghTThe 
tSn  of Th? ° l f COUnt °f raCe or coIor’ or bi contraven- 
1973b(fi (2) ofthisTftlegUaranteeS f0rth “  Section

42 U.S.C. § 1973a(c) (1976). Because we believe that continu­
ing cour jurisdiction of the redistricting requirements for the

(Footnote continued on following page)



Nos. 83-2044, 83-2065 and 83-2126 21

The Hispanic communities also allegedly were 
fractured. We, of course, recognize that the Hispanic 
population is generally more dispersed than is the black 
and that it is therefore usually more difficult to create 
wards with a significant Hispanic majority. See generally 
Note, Alternative Voting Systems as Remedies for Un­
lawful At-Large Systems, 92 Y a l e  L. R e v . 144, 146 n.16 
(1982). Still, fracturing can, and ostensibly has, occurred. 
Appellants claim that the Northwest Side Hispanic com­
munity was split among six wards (the 26th, 30th, 31st, 
32nd, 33rd and 35th Wards) with Hispanic populations in 
these various wards ranging from 24.1% to 57.3%. On the 
Southwest Side, the Hispanic community of Pilsen was 
split into two wards (the 1st with 30.7% and the 25th with 
52.6% Hispanic population) instead of being left intact, as 
it might Have been, as one ward with an Hispanic popula­
tion of 72.9%. In addition, the Little Village community, 
which could have been left entirely within the 22nd Ward 
with an Hispanic population of 78.8%, was split between 
the 12th and 22nd Wards with 32% and 64.3% of the total 
population, respectively. Appellants’ brief at 25-26.

Despite these considerable indications of minority 
voting strength dilution through manipulation, packing 
and fracturing, which in Rybicki I  were (we think 
correctly ) held to constitu te  in ten tional racial 
discrimination, we think it is unnecessary to make a 9

9 continued
black and Hispanic, population. According to his calculations, 
the odds of a black being placed in a majority-white ward were 
4.47 times as great as the odds of a white being placed in a 
majority-black ward. If only those wards located along the 
“borders” between the white and black communities are 
considered, then blacks in those wards were 33.67 times as 
likely to be placed in majority-white wards. In both situations 
(because virtually all Hispanics live in border areas), the odds 
are 88.68 times as great that an Hispanic would be placed in a 
majority-white ward as that a white would be placed in a 
majority-Hispanic ward. Appellants’ brief at 27-31; Plaintiffs’ 
exhibits 171, 172, 193, 199, 205; Tr. 742, 779.



20 Nos. 83-2044, 83-2065 and 83-2126

cies are necessarily racially discriminatory. We think 
there is little point for present purposes in distinguishing 
discrimination based on an ultimate objective of keeping 
certain incumbent whites in office from discrimination 
borne of pure racial animus.

We have discussed above several examples of the dilu­
tion of minority voting strength through manipulation of 
ward boundaries. Appellants have alleged instances of 
packing (the “wasting” of black votes through unneces­
sary concentration, supra n.7), in that fourteen of the 
seventeen majority black wards have black populations in 
excess of 89%, while only six majority white wards have 
majorities at comparable levels. Appellants’ brief at 31. 
There are also allegations of fracturing of the black com­
munities on both the West and the South Sides, so that 
certain black population, which could have been used to 
form additional black majority wards, was instead split 
off to form sizeable black minorities within white majority 
wards.9

9 Supra n.8. Plaintiffs’ expert witness, Dr. Hofeller, testified 
at trial as follows:

In the construction of the 1981 wards overlay, . . . there 
are instances in which the predominantly white wards 
come in and fracture the black communities. You see this 
in Ward 18, Ward 15, W’ard 14, Ward 11, Ward 1, Ward 
37 and to some extent Ward 42. Nowhere on the map do 
you see a compensating reach of a black ward out across 
the boundary of the neighborhood into the white areas. In 
this way there could not help but be less black wards 
created than would be warranted by the population of the 
black neighborhood.

Tr. 921-22; see also Tr. 235 (testimony of Martin R. Murphy 
identifying fracturing in the 11th, 14th, 18th, 19th, 37th and 
22nd W ards).

Another plaintiffs’ expert witness, Dr. Philip Hauser, con­
ducted various statistical analyses to demonstrate the dispro­
portionate effect of fracturing on the white, as opposed to 

(Footnote continued on following page)



Nos. 83-2044, 83-2065 and 83-2126 19

the product of an intent to preserve the incumbencies of 
various white legislators. Nevertheless, the court said:

It may, of course, be argued that this manipulation of 
racial populations in the district was accomplished 
for the purpose of maintaining the incumbency of a 
white Senator and was not necessarily indicative of 
an intent to discriminate against blacks qua blacks. 
We believe, however, that under the peculiar circum­
stances of this case, the requirements of incumbency 
are so closely intertwined with the need for racial di­
lution that an intent to maintain a safe, primarily 
white, district for Senator Joyce is virtually cotermi­
nous with a purpose to practice racial discrimination.

IcL a t 1109. The court in Rybicki I  recognized that adjust­
ments of legislative d istric ts merely to preserve 
incumbencies, where large shifts and manipulation of 
racial populations were not evident, would not necessarily 
amount to purposeful racial discrimination. IcL at 1110-11 
n.81. See Burns u. Richardson, 384 U.S. 73, 89 n.16 (1966) 
(“The fact that district boundaries may have been drawn 
in a way that minimizes the number of contests between 
present incumbents does not in and of itself establish 
invidiousness.”); McMillan v. Escambia County, Florida, 
638 F.2d 1239, 1245 (5th Cir.) (“the desire to retain one’s 
incumbency unaccompanied by other evidence ought not 
to be equated with an intent to discriminate against 
blacks qua blacks”), cert, dismissed sub nom. Jenkins v. 
City o f Pensacola, Florida, 453 U.S. 946 (1981), vacated 
in part, 688 F.2d 960 (1982), vacated and remanded, 52 
U.S.L.W. 4397 (1984). Nonetheless, the court found in 
Rybicki I  that the evidence of dilution of minority voting 
strength by manipulation, fracturing and packing estab­
lished intentional racial discrimination in the redistricting 
plan because racial discrimination was the necessary ac­
companiment of the action taken to protect incumbencies. 
Since it is frequently impossible to preserve white incum­
bencies amid a high black-percentage population without 
gerrymandering to limit black representation, it seems to 
follow that many devices employed to preserve incumben-



18 Nos. 83-2044, 83-2065 and 83-2126

See Appellants’ brief at 21; Defendant’s Exhibit II, Ap­
pendix A to Brief of Defendant-Appellee, The City Coun­
cil of the City of Chicago [Def. Ex.].

This very practice was identified in the Rybicki I 
opinion, where it was found to constitute manipulation de­
signed to dilute minority voting strength. In Rvbicki I  in 
several legislative districts, large numbers of blacks were 
moved out, whites moved in, and the excluded blacks 
“packed” into a district with an unnecessarily high propor­
tion of blacks and with a resulting “waste” of black votes 
Rybicki I, 574 F. Supp. at 1111-12.7 Examples of 
“fracturing,” in which blacks are moved out of black 
majority wards and into white majority wards where 
they would constitute a sizeable but politically ineffective 
minority, were also identified.8 Rybicki L 574 F. Supp. at 
1109-11. **

In Rybicki /, the three-judge court found that these 
practices of manipulation, packing and fracturing were

7 Districts with a black majority greater than 65%-70% (the 
percentage considered necessary to ensure blacks a reasonable 
opportunity to elect candidates of their choice) may evidence
packing. In such cases, the excessive concentration of black 

population may be viewed as “wasting” minority voting power 
and unnecessarily minimizing minority effectiveness in other 
districts. See The Dilemma of the Voting Rights Act, supra n.2, 
at 1662-63 n.194.
8 Fracturing is the process by which a minority group which 
could form a sizeable majority in one district is split into two or 
more districts where the minorities constitute an ineffective 
political grouping in each district. See also infra n.9; Gingles v 
Edmisten, No. 81-803-CIV-5, slip op. at 18 (E.D.N.C. Jan. 27, 
1984) (three-judge panel) (“Vote dilution in the White v. Reges- 
ter sense may result from the fracturing into several single­
member districts as well as from the submergence in one multi­
member district of black voter concentrations sufficient, if not 
‘fractured’ or ‘submerged,’ to constitute an effective single­
member district voting majority”).



Nos. 83-2044, 83-2065 and 83-2126 17

voting strength indicates “invidious motive” in action for 
declaratory relief under section 5 of the Voting Rights 
Act); Hale County, Alabama v. United States, 496 F. 
Supp. 1206, 1218 (D.D.C. 1980) (three-judge panel) 
(retrogressive effect of changes in voting scheme supports 
inference of discriminatory purpose in action brought 
under section 5 of the Voting Rights Act) .6

Second, discrunination may be identified in the manipu­
lation of certain ward boundaries to adjust the relative 
size of racial groups in the City Council map. For 
example, before the 1981 redistricting, four wards—the 
7th, 15th, 18th and 37th Wards—had populations in excess 
of the 60,101 required under the redistricting plan. Popu- 
lation therefore had to be moved out of those wards in 
order to accomplish the redistricting mandate. Three of 
the four wards had strong, but not overwhelming, black 
majorities. The fourth ward (the 18th) had a strong black 
plurality. In order to accomplish the required redistribu­
tion of population, however, blacks were moved out of 
these wards in much greater numbers than their propor­
tion of the population and in greater numbers than re­
quired to accomplish the necessary reduction. Additional 
people, comprising a mix of blacks and non-minorities, 
were then moved into these wards to make up the deficit 
with a resulting sharp reduction in the proportion of 
blacks m those wards. This process is illustrated by the 
following chart:

1970
Ward Map

7 69,521
15 72.255
18 61,409
37 77,394

% Total % Total % %Black Moved Out Black Moved In Black Map Black
62.6 14,176 93.7 5,002 66.6 60,34766.4 17,847 96.5 5.846 0.0 60.254 51.049.3 10,729 98.6 9,440 85.6 60.120 46.276.4 40,035 96.2 23,149 1.4 60,508 34.5

R e tro g re s s io n  cau s in g  e ro s io n  in  th e  r e la t iv e  v o tin g  s t r e n g th  
o f  m in o r it ie s  is o f te n  a n  issu e  in  c a se s  b ro u g h t  u n d e r  se c tio n  5 
o f  th e  V o tin g  R ig h ts  A c t. See The Dilemma o f the Voting 
Rights A c t supra n.2, a t  1622-23 n.29.



16 Nos. 83-2044, 83-2065 and 83-2126

minorities, and depressed socio-economic status attributa­
ble to inferior education and employment and housing 
discrimination. I d  S e e  a l s o  B u c h a n a n  u. C i t y  o f  Jackson ,  
708 F.2d 1066 (6th Cir. 1983) (district court decision re­
manded for reconsideration in light of amended section 2 
of the Voting Right Act and R o g e r s  u. L o d g e  which recog­
nized that discriminatory purpose can be based on circum­
stantial evidence including the Z i m m e r  factors); B u sk e y
u. O live r ,  565 F. Supp. 1473, 1481 (M.D. Ala. 1983) 
(discriminatory result may be established by several rele­
vant “circumstantial factors” enumerated in the pre- 
B o l d e n  cases, W h i te  v. R e g e s t e r  and Z i m m e r  v. 
M c K e i th e n ); Note, The C o n s t i t u t i o n a l  S ig n i f i c a n c e  o f  the  
D i s c r i m i n a t o r y  E f fec ts  o f  A t - L a r g e  E le c t io n s ,  91 Yale 
L. Rev. 974, 978-81 (1982).

The district court in the case before us found that pro­
tection of incumbent aldermen was the motivation under­
lying the City Council redistricting plan. Yet several 
other factors, similar to those which led the court in 
R y b i c k i  I  to conclude that intentional discrimination was 
present in the legislative redistricting plan, are strong 
evidence of intentional discrimination here as well. First, 
there is the retrogression, in the context of a substantial 
increase in the percentage of blacks in the population, 
from nineteen majority black wards in 1980 under the 
1970 map to seventeen majority black wards under the 
1981 City Council map. S u p r a  n.2; R y b i c k i  I, 574 F. Supp. 
at 1108-09. S ee  a l so  C i ty  o f  R o m e  v. U n i t e d  S ta te s ,  446 
U.S. 156, 185 (1980) (electoral changes cannot be permit­
ted which lead to retrogression in the position of racial 
minorities in the exercise of their electoral rights); B eer
v. U n i t e d  S ta te s ,  4 2 5  U.S. 130, 141 (1976) (retrogression 
in the position of racial minorities is not permitted under 
the Voting Rights Act); B u s k e y  v. O l ive r ,  565 F. Supp. 
1473, 1482 (M.D. Ala. 1983) (retrogression may constitute 
unlawful vote dilution under amended section 2 of the 
Voting Rights A ct); C ity  o f  P o r t  A r t h u r ,  T e x a s  v. U n i te d  
S ta te s ,  517 F. Supp. 987, 1022 (D.D.C. 1981) (three-judge 
panel), a f f d  103 S. Ct. 530 (1982) (reduction of black



Nos. 83-2044, 83-2065 and 83-2126 15

dermen’s desire to protect their incumbencies (Tr. 4102). 
The court did, however, find a section 2 violation, not on 
the basis of purposeful discrimination, but on the basis of 
the retrogression in the 1981 map in the number of wards 
with a black majority population. We approve this finding 
of a section 2 violation based on retrogression and on the 
manipulation of racial voting populations to achieve 
retrogression.

I ll
Intentional Discrimination

Appellants also ask us to reverse the trial court’s 
determination that there has been no fourteenth amend­
ment violation. In order to establish such a violation, we 
would be required to find that the City Council had inten­
tionally discriminated against minorities under the crite­
ria set out in C i ty  o f  M o b ile  u. B o ld e n , 446 U.S. 55 (1980). 
The Supreme Court there stated in its plurality opinion 
that, in order to prove a claim of voting strength dilution, 
the “plaintiff must prove that the disputed plan was 
‘conceived or operated as [a] purposeful devicte] to further 
racial . . . discrimination.’” 446 U.S. a t 66 (quoting 
W h itc o m b  u. C h a v is ,  403 U.S. 124, 149 (1971)). It is not, 
however, necessary for a plaintiff to demonstrate that dis­
criminatory purpose is the only underlying motivation for 
the challenged redistricting plan as long as it is one of the 
motives. V il la g e  o f  A r l i n g t o n  H e ig h ts  v. M e tr o p o l i ta n  
H o u s in g  D e v e lo p m e n t  C o rp . ,  429 U.S. 252, 265-66 (1977); 
R y b i c k i  /, 574 F. Supp. at 1106-07.

In R o g e r s  v. L o d g e ,  458 U.S. 613 (1982), the Supreme 
Court retreated somewhat from the plurality position in 
B o ld e n  without actually overruling B o ld en .  In R o gers ,  
the Court affirmed the district court’s finding of inten­
tional discrimination based on indirect and circumstancial 
evidence and endorsed its reliance on a “totality of the cir­
cumstances” approach. Id. at 622-27. The factors cited in 
R o g e r s  as relevant to a determination of discriminatory 
intent include bloc voting along racial lines; low black 
voter registration; exclusion from the political process; 
unresponsiveness of elected officials to needs of



14 Nos. 83-2044, 83-2065 and 83-2126

Dallas and Bexar Counties in Texas. Elected officials and 
the Democratic Party in Chicago have over the years 
been somewhat more responsive to black and Hispanic 
concerns, and in Chicago numerous black public officials, 
including aldermen, state senators and representatives, 
U.S. representatives and now the Mayor have been 
elected.

However, adverse social and economic circumstances 
involving discrimination, depressed socio-economic 
conditions, lower income, housing and school segregation, 
and traditionally low voter registration and turn- out have 
existed for the black and Hispanic communities in 
Chicago. R y b i c k i  II, 574 F. Supp. at 1151-52. In addition, 
employment or other forms of discrimination have been al­
leged or proven in such city units as the Chicago Police 
Department, the Chicago Housing Authority, the Chicago 
Board of Education, the Chicago Public Library and the 
Chicago Park District. R y b i c k i  v. S t a t e  B o a r d  o f  E le c t io n s  
o f  the  S t a t e  o f  I l l in o is ,  574 F. Supp. 1082, 1120-21 (N.D. 
111. 1982) (three-judge panel) [“R y b i c k i  7”]. While blacks 
have been represented in the City Council, the Hispanic 
community has not, having elected no alderman between 
1920 and 1980. Stip. 117. In P u e r to  R i c a n  O r g a n iz a t io n  
f o r  P o l i t i c a l  A c t i o n  v. K u s p e r ,  350 F. Supp. 606, 611 
(N.D. Id. 1972), a f f d ,  490 F.2d 575 (7th Cir. 1973), the 
district court issued an injunction requiring the prepara­
tion and distribution of certain election materials in Span­
ish in order to protect the right to vote of Spanish­
speaking individuals. Finally, we note that the three- 
judge R y b i c k i  court found intentional discrimination in 
the redistricting plan, based on the 1980 census, of certain 
state legislative districts in Chicago. R y b ic k i  I, 574 F. 
Supp. at 1108-12.

The district court, in the case before us, rejected plain­
tiffs’ claims of a section 2 violation based on dilution of 
minority voting strength through packing and fracturing 
of minority communities. Instead it found that these prac­
tices were the result of severe housing segregation of the 
black community in certain areas and the incumbent al-



Nos. 83-2044, 83-2065 and 83-2126 13

a poll-tax and exclusion of blacks from the Democratic 
Party  primary process) and of certain other historical 
and socio-economic factors or circumstances. These cir­
cumstances included the failure of the Democratic Party 
to “exhibit good-faith concern for the political and other 
needs and aspirations of the Negro community,” use of 
racial campaign tactics to defeat candidates with black 
support and the fact that only two blacks had been elected 
to the Texas House of Representatives from Dallas 
County since Reconstruction. 412 U.S. a t 767. The district 
court thus found tha t the black community was 
“generally not permitted to enter into the political process 
in a reliable and meaningful manner.” Id.

The approach which the White v. Regester Court uti­
lized in analyzing the historical circumstances of the 
Hispanic community of Bexar County (containing the 
City of San Antonio) is perhaps more directly applicable 
to our case. The Supreme Court considered the effect on 
political participation of discrimination in education, 
employment, economics, health and other areas. Id. a t 768.

I t  is important to recognize that the circumstances 
identified in White v. Regester were thought to be useful 
in characterizing a system utilizing multi-member elec­
tion districts. In a case where lines are drawn to establish 
discrete electoral units and to distribute racial and ethnic 
populations among districts, the ways in which these lines 
are drawn may become independent indicia of discrimina­
tory intent or result. Such “direct” factors in the drafting 
process of individual districts may augment or even take 
the place of the White v. Regester “background” factors 
which indicate the historical or sociological climate of an 
entire county or other political unit.

The political situation in the City of Chicago is obvious­
ly somewhat different from that addressed in White v. 
Regester. The sorts of discrimination in politics and in 
governmental contexts which have been alleged (and in 
some cases proven in court) in Chicago have been less 
open and notorious than what was historically the case in



,t%
n 

-Im
*

These factors were derived from White v Regester 412 
U.S. 755 (1973), the leading pre-E\oldei  ̂
case and Z i m m e r  v. McKeithen, 485 F^2d 1297 (5th L' ■ 
1973) (en banc), a f fd  on grounds sub n o m . East
C n r r n l l  Parish School Board u. Marshall 424 U.b. bdb 
fl976). Z i m m e r  articulated the aggregate < > f u p c i n
which a claim of vote dilution distr.ct
1 nnr n7 whitp v Regester, which affirmed a district
c o ^  decisTon d e d a r b S  invalid m ulti-m em ber d istric ts  m
M a s  and B esL  Cocities, Texas, relied on evidence of
traditional racially exclusionary practices (such as use o

12 Nos. 83- 2044, 83- 2065 and 83-2126

'  “ S r .  be p ro v e d , o r  t h a t  a  m a jo r i ty  o f  th e m  p o in t one 
w ay  o r th e  o th e r .

S e n a te  R e p o r t  a t  28 -29  ( fo o tn o te s  o m itte d ) .  T h e  S u b c o m m itte e  
n n T h P  C o n s t i tu t io n  o f  th e  S e n a te  J u d ic ia ry  C o m m itte e  e n u ­
m e ra te d  a  p a r t ia l  l is t  o f  tw e n ty  “o b je c tiv e  f a c to r s  g lean e  
f ro m  v a r io u s  so u rces , in c lu d in g :

(1) som e h is to ry  o f d isc r im in a tio n ; (2) a t - la r g e  v o tin g  sys- 
t e m s ^ o r  m u lt i-m e m b e r  d is t r ic ts ;  (3) so m e h is to ry  o f 
“d u a l” school sy s te m s ; (4) c a n c e lla tio n  o f  reg is f̂ r a t^  f° r  
f a ilu re  to  v o te ; (5) re s id e n c y  r e q u ir e m e n ts  ^  v o te rs  
(6) sp ec ia l r e q u ir e m e n ts  fo r  in d e p e n d e n t o r  th i rd  p a r ty  
c a n d id a te s ;  (7) o f f -y e a r  e le c tio n s ; (8) s u b s ta n t ia l  c a n d i­
d a te  c o s t re q u ire m e n ts ;  (9) s t a g g e r e d  te rm s  o f o ffice ,
(10) h ig h  econom ic  c o s ts  a s so c ia te d  w ith  r e g ^ t r a t i o n
(11) d is p a r i ty  in  v o te r  r e g i s t r a t io n  b y  ra c e ,  (12) h is to ry  
o f  la c k  o f  p ro p o r tio n a l r e p r e s e n ta t io n ;  (13) d is p a r ity  m  
l i te ra c y  r a te s  by  ra c e ;  (14) e v id e n c e  o f  ra c ia l  bloc v o tin g , 
(15) h is to ry  o f E n g lish -o n ly  b a llo ts ;  (16) h is to ry  o f  poll 
ta x e s -  (17) d is p a r i ty  in  d is t r ib u t io n  o f  se rv ic e s  by  ra c e , 
(S? numbered e le c to ra l  p o s ts ; (19) p ro h ib itio n s  on  s in g le ­
sh o t v o tin g ; a n d  (20) m a jo r i ty  v o te  re q u ire m e n ts .

c  T5on(1r t  a t  143-44  ( fo o tn o te s  o m itte d ) . I n  Rogers
L o d g e  458 U .S . 613, 623 -27  (1 9 8 2 ), th e  S u p re m e  C o u r t  a ^  
n ro v e d  a  f in d in g  o f  in te n tio n a l  d is c r im in a tio n  b a se d  up o n  a n  
S S S s i s  o f  f o c S s  s im ila r  to  th o se  d isc u sse d  m  th e  .le p r ia t iv e  
h is to ry  o f a m e n d e d  se c tio n  2 a n d  th o se  c o n s id e re d  m  White 
Regester, 412  U .S . 755 (1 9 7 3 ).

v.



Nos. 83-2044, 83-2065 and 83-2126 11

5 continued
2. the extent to which voting in the elections of the 

state or political subdivision is racially polarized;
3. the extent to which the state or political subdivi­

sion has used unusually large election districts, 
majority vote requirements, anti-single shot 
provisions, or other voting practices or procedures 
that may enhance the opportunity for discrimination 
against the minority group;

4. if there is a candidate slating process, whether 
the members of the minority group have been denied 
access to that process;

5. the extent to which members of the minority 
group in the state or political subdivision bear the ef­
fects of discrimination in such areas as education, em­
ployment and health, which hinder their ability to 
participate effectively in the political process;

6. whether political campaigns have been char­
acterized by overt or subtle racial appeals;

7. the extent to which members of the minority 
group have been elected to public office in the 
jurisdiction.

Additional factors that in some cases have had proba­
tive value as part of the plaintiffs’ evidence to establish a 
violation are:

whether there is a significant lack of responsive­
ness on the part of elected officials to the particular­
ized needs of the members of the minority group.

whether the policy underlying the state or political 
subdivision’s use of such voting qualification, prereq­
uisite to voting, or standard, practice or procedure is 
tenuous.

While these enumerated factors will often be the most 
relevant ones, in some cases other factors will be indicative 
of the alleged dilution.

The cases demonstrate, and the Committee intends 
that there is no requirement that any particular number 

(Footnote continued on following page)



10 Nos. 83-2044, 83-2065 and 83-2126

processes are equally open; that is, whether, mem­
bers of a protected class have the same opportunity 
as others to participate in the electoral process and 
to elect candidates of their choice. The courts are to 
conduct this analysis on the basis of a variety of ob­
jective factors concerning the impact of the chal­
lenged practice and the social and political context in 
which it occurs.

Senate Report at 67 (footnote omitted). Plaintiffs, 
therefore, need only show “that the challenged system or 
practice, in the context of all the circumstances in the 
jurisdiction in question, results in minorities being denied 
equal access to the political process.” Id. at 27.

The legislative history and subsequent judicial interpre­
tation of the 1982 amendments clearly demonstrate that 
claims of vote dilution come within the scope of the Act. 
Senate Report at 30 n.120; R y b i c k i  u. S t a t e  B o a r d  o f  E le c ­
t io n s  o f  the  S t a t e  o f  I l l in o is ,  574 F. Supp. 1147, 1148 
(N.D. Ill 1983) (three-judge panel) [aR y b i c k i  I F] ,  As 
stated in R y b i c k i  II, it is clear that the amendments are 
intended to apply to redistricting plans and that their ap­
plication to a current redistricting plan poses no problems 
of retroactivity because such application is in fact pro­
spective to the elections to be held during the next decade. 
R y b i c k i  II, 574 F. Supp. at 1148 n.3.

In order to determine whether a suspect election struc­
ture or practice constitutes a violation of section 2 under 
the “results” test and in order to remain faithful to Con­
gress’ express intent, we should attem pt to apply the fac­
tors set forth in Congressional Committee reports.5

5 The report of the Senate Judiciary Committee listed “typical 
factors” as including:

1. the extent of any history of official discrimina­
tion in the state or political subdivision that touched 
the right of the members of the minority group to 
register, to vote, or otherwise to participate in the 
democratic process;

(Footnote continued on following page)



Nos. 83-2044, 83-2065 and S3-2126 9

In City o f Mobile v. Bolden, 446 U.S. 55 (1980), a plu­
rality of four Justices had held that, in order to establish a 
violation of the fifteenth amendment, a “racially discrim­
inatory motivation” must be established. Id. a t 62. Similar 
proof of intent was required to establish a violation of the 
equal protection clause of the fourteenth amendment in 
racial vote dilution cases. Id  at 66. The plurality opinion 
of the Supreme Court also concluded that, because Con­
gress intended section 2 of the pre-1982 Voting Rights 
Act to track the fifteenth amendment, section 2 also re­
quired proof of discriminatory intent. Id  a t 60-61. The 
relevant legislative history of amended section 2 expressly 
states that it was intended to replace the Bolden intent re­
quirement with a “results” standard. Congress intended 
that, “[i]f the plaintiff proceeds under the ‘results test’, 
then the court would assess the impact of the challenged 
structure or practice on the basis of objective factors, 
rather than making a determination about the motivations 
which lay behind its adoption or maintenance.” S. Rep. 
No. 417, 97th Cong., 2d Sess. 27 (1982) [“Senate Report”], 
reprinted in 1982 U.S. CODE CONG. & Ad. News 177 et seq.

The standard for determining a section 2 violation was 
indicated in the legislative history as follows:

New Subsection 2(b) delineates the legal analysis 
which the Congress intends courts to apply under the 
“results test.” Specifically the subsection codifies the 
test for discriminatory result laid down by the Su­
preme Court in White v. Regester . . . .  412 U.S. 755, 
a t 766, 769. The courts are to look at the totality of 
the circumstances in order to determine whether the 
result of the challenged practice is that the political 4

4 continued
elected in numbers equal to their proportion in the 
population.

42 U.S.C. § 1973 (1976), as amended on June 29, 1982, by Pub. 
L. No. 97-205, § 3, 96 Stat. 134 (1982), 42 U.S.C.A. § 1973 
(WestSupp. 1983).



8 Nos. 83-2044, 83-2065 and 83-2126

II
The 1982 Voting Rights Act Amendment

The Voting Rights Act, 42 U.S.C. § 1973, was amended 
and extended in June 1982. Under the previous version of 
section 2 of the Voting Rights Act, which had been judi­
cially construed to parallel the fifteenth amendment, a 
violation could be found only if the discrimination were 
found to be intentional. City o f Mobile v. Bolden, 446 U.S. 
55, 60-61 (1980). The most significant change brought 
about by the 1982 amendments was to eliminate the re­
quirement of intentional discrimination by substituting a 
“results” test for the “purpose” test imposed by the Su­
preme Court and by listing the factors to be considered in 
determining whether on the basis of the “totality of cir­
cumstances” the Act has been violated.4

4 Section 2 as amended states:
(a) No voting qualification or prerequisite to voting or 

standard, practice, or procedure shall be imposed or ap­
plied by any State or political subdivision in a manner 
which results in a denial or abridgement of the right of 
any citizen of the United States to vote on account of race 
or color, or in contravention of the guarantees set forth in 
section 1973b(fU2) of this title, as provided in subsection 
(b) of this section

(b) A violation of subsection (a) of this section is estab­
lished if, based on the totality of circumstances, it is 
shown that the political processes leading to nomination or 
election in the State or political subdivision are not equally 
open to participation by members of a class of citizens pro­
tected by subsection (a) of this section in that its members 
have less opportunity than other members of the elector­
ate to participate in the political process and to elect rep­
resentatives of their choice. The extent to which members 
of a protected class have been elected to office in the 
State or political subdivision is one circumstance which 
may be considered: Provided, That nothing in this section 
establishes a right to have members of a protected class

(Footnote continued on following page)



7

should be four majority and one plurality Hispanic wards 
(Tr. 4112-13).

Several important principles underlying the district 
court’s decision should be re-emphasized. First, the dis­
trict court held that protection of incumbencies-even 
when accomplished by purposeful manipulation of the 
racial composition of the voting unit-does not constitute 
deliberate discrimination. Second, in determining a section 
2 violation, the district court said that only the overa 1 
city map and, in particular, only retrogression on a 
“city-wide scale” need be examined; the situation within 
particular wards and “retrogression m the size of a 
majority within individual wards need not be considered. 
Such phenomena as packing, fracturing and boundary 
m an ip u la tio n  w ere also deemed t o . ,r f £ u ' re . n° 
consideration. Third, the district court said that voting 
age population rather than total population figures should 
be utilized in determining the relative racial composition 
of a ward for remedial purposes. F°m t^ 0̂ e f° ^ “
that a simple majority (i.e., more than 50%) of voting ag 
population is the only criterion to be used in determining 
whether a particular minority has a reasonable opportuni­
ty to elect a candidate of its choice.

On appeal, plaintiffs-appellants have requested that we 
order the district court to devise a new map which reme­
dies the alleged dilution of minority voting strength 
through manipulation, packing, fracturing and retrogres­
sion within individual wards and which adopts a 65^ 
minority population guideline for remedial purposes, 
whenever possible. In addition, appellants urge that we in­
struct the trial court to enter a finding of intentional dis­
crimination in violation of the fourteenth amendment 
against blacks and Hispanics in the drawing of the City
Council map.3

3 Appellants also challenge the sufficiency of the district 
court’s oral opinion purporting to constitute findings of fact 
and conclusions of law under Rule 52(a) of the Federal Rules 
Civil Procedure. In light of our holding on this appeal, it is not 
necessary to address this issue.

Nos. 83-2044, 83-2065 and 83-2126



6 Nos. 83-2044, 83-2065 and 83-2126

wards under the new 1981 map.2 It therefore ordered 
that a black majority be restored to the 37th and 15th 
Wards (Tr. 4107). The court also determined that there

2 Retrogression may be defined as a decrease in the new dis­
tricting plan or other voting scheme from the previous plan or 
scheme in the absolute number of representatives which a 
minority group has a fair chance to elect. See Beer v. United 
States, 425 U.S. 130, 141 (1976); Rybicki u. State Board o f Elec­
tions o f the State o f Illinois, 574 F. Supp. 1082, 1108-09 and 
nn.74 & 75 (N.D. I1L 1982) (three-judge panel! [“Rybicki Ti. 
Here, the term refers to a reduction in the number of wards 
with an effective majority of the relevant minority group from 
the number of such wards which existed immediately before 
the redistricting plan was instituted. The circumstances of re­
trogression suggest a shortfall in minority representation 
below what would have been anticipated based on changes in 
overall population proportions. To correct retrogression does 
not necessarily (or usually) imply the achievement of propor­
tional representation. Beer v. United States, 425 U.S. at 141 
(reapportionment plan which does not provide proportional rep­
resentation for blacks does not violate nonretrogression rule as 
long as blacks can elect as many black representatives as was 
possible under the previous plan). See also City o f Lockhart u. 
United States, 103 S. Ct. 998, 1003 (1983) (adopting Seer analy­
sis that section 5 preclearance could be granted as long as the 
new plan “did not increase the degree of discrimination against 
blacks ), Howard and Howard, The Dilemma o f the Voting 
Rights Act—Recognizing the Emerging Political Equality 
Norm, 83 COLUM. L. Rev. 1615, 1622-23 m29 (1983) [The 
Dilemma o f the Voting Rights Act], Rather, the nonretrogres­
sion rule requires the maintenance of representation at roughly 
the same level as was formerly achieved. The application of the 
nonretrogression rule in the instant case, where the population 
of Chicago is declining but the number of wards remains 
constant, may be more clearly defensible than where the city 
population is falling and the number of election districts (such 
as state or congressional representative districts) assigned to 
the city is also declining. In the latter situation, a retrogression 
analysis may (but does not necessarily) overstate the minority 
claim. See, e.g., Rybicki I, 574 F. Supp. at 1108-09.



Nos. 83-2044, 83-2065 and 83-2126 5

of the 31st Ward; the City Council of the City of Chicago 
and the Board of Election Commissioners of Chicago. The 
three suits were consolidated for all purposes and another 
group of five voters from the 42nd and 43rd Wards (the 
Pi liman plaintiffs-intervenors) and the United States 
were granted leave to file intervening complaints. Neither 
the United States nor the Pillman plaintiffs are involved 
in this appeal. The individual defendants, Byrne, Murphy 
and Keane, were dismissed at the end of plaintiffs’ case 
(Tr. 2448-55), and that dismissal has not been appealed.

The trial lasted from October 9 through December 7, 
1982. On December 21, 1982, District Judge Thomas R. 
McMillen delivered an oral opinion from the bench. The 
court rejected plaintiffs’ fourteenth and fifteenth amend­
ment claims finding that the motivation for the adoption 
of the 1980 redistricting map by the City Council “was 
not based on the intent or purpose of discriminating 
against any minority group,” but, rather, the reason “was 
to preserve the incumbencies of those members of the 
City Council who were voting on the map” (Tr. 4083). The 
court did, however, find a violation of section 2 of the 
Voting Rights Act, as amended in 1982, because the “total 
result” of the map was “unfair” and ordered the defend­
ants to draw a new map revising four wards, although in 
fact seven wards were changed in the court-approved 
map. Tr. 4107, 4112-13. On December 23, 1982, defendants 
presented their revised map, which the court adopted on 
December 24, 1982, over objections of the black and 
Hispanic plaintiffs. Plaintiffs presented a motion for 
modification which was denied on May 12, 1983.

Plaintiffs alleged, as they now argue on appeal, that the 
City Council map caused dilution in minority voting 
strength through four techniques—fracturing, packing, 
retrogression and boundary manipulation. The trial court’ 
however, rejected most of these claims (Tr. 4100-05) and 
found the City Council map unfair only in that it caused 
retrogression from the nineteen majority black wards in 
1980 under the 1970 map to seventeen majority black



4 Nos. 83-2044, 83-2065 and 83-2126

provided for twenty-four non-Hispanic white majority 
wards, eighteen black majority wards, five Hispanic 
majority wards and three wards with no majority (Stips. 
73-84).

On November 9, 1981, the Subcommittee on Redistrict­
ing held its first and only public meeting at which the pro­
posed ward map was publicly displayed for the first time. 
This map, like the “October map,” provided for twenty- 
four white wards, eighteen black wards, five Hispanic 
w’ards and three w’ards without any majority, based on a 
figure of more than 50% of total population as constituting 
a majority. Commissioner Murphy, however, incorrectly 
stated at the meeting that the map provided for nineteen 
black majority wards and twenty-six white majority 
wrards (Stips. 85-88).

After accepting certain amendments, the City Council, 
on November 30, 1981, adopted by a vote of twenty-nine 
to seven the final map (the “1981 map” or “City Council 
map”), which provided for twenty-four white majority 
wards, seventeen black majority wards, four Hispanic 
majority wards and five wards with no majority group 
(Stips. 105-106). Several alternative maps had been pro­
posed but had received relatively little consideration In 
addition, the City Council under Chicago’s Home Rule 
powers passed an ordinance requiring that seventeen, 
rather than ten, aldermen must vote against a redistrict­
ing ordinance before a substitute ordinance could be sub­
mitted to a public referendum. ILL. Rev. Stat. ch. 24 
§ 21-39(1981); Stip. 100.

In the summer of 1982, three groups of plaintiffs filed 
voting rights complaints, including a group of nine black 
voters of the City of Chicago (the Ketchum  plaintiffs), a 
group of six Hispanic voters of the City of Chicago (the 
Velasco plaintiffs) and another group of four individuals 
and a black political organization (the Political Action 
Conference of Illinois). The defendants in each case were 
Jane Byrne, Mayor of the City of Chicago; Martin R. 
Murphy, Commissioner of the Department of Planning of 
the City of Chicago; Thomas E. Keane, former alderman



Nos. 83-2044, 83-2065 and 83-2126 3

1970

65.5%
32.7%
7.3%

1980

43.2%
39.8%
14.0%

Non-Hispanic W hite 
Black 
Hispanic

In 1970, blacks had a population majority in fifteen 
wards, but, in 1980, under the 1970 ward map, blacks had 
a majority in nineteen wards and a plurality of 49.3% in 
another ward. In 1970, Hispanics had no majority ward 
but, m 1980, again under the 1970 map, Hispanics had 
iour majority and two plurality wards. In 1980, therefore 
non-Hispanic whites had a majority in twenty-two wards 
fc ? ’ Presumably, a plurality in two additional wards 
(btip. 62; appellants’ brief at 10-11).

April and May of 1981, defendant Martin R 
Murphy, Commissioner of the Department of Planning of 
the City of Chicago, and defendant Thomas E. Keane 
former alderman of the 31st Ward, drafted a new ward 
map m conformance with the 1980 census population 
figures. In September and October 1981, Mr. Murphy con- 
sulted with various city officials and transmitted to the 
City Council s Subcommittee on Redistricting his census 
data and ward map draft. Information concerning each 
proposed new ward was submitted to the alderman cur­
rently representing that ward, but the city-wide map was 
not submitted to the City Council. This “October map”

1 continued
1980 census, an Hispanic person was asked first to identify him-
self or herself as white, black or other and was then to indicate
that he or she was Hispanic. As a result and because of other 
classifications such as Asian, the sum of the white, black and
TlfPf^ n  rgUreS d°eT1 * * * S & *T n0t 6qUal the totaJ Population. Stip. 51  
I  i Q7n8?irigUreS °n HlsPJanics ^  not directly comparable to 1 9 /0  Hispanic census data because of such factors as overall 
improvements in the 19 8 0  census and improved question
& Ŝ B U R E \ U 0 F  T h e  C e n s u s , U.S. D e p t  O f  C o m m e r c e
( 1 9 8 i )STICAL A b s t r a c t  C f  T h e  U n i t e d  S t a t e s : 1981, 3



2 Nos. 83-2044, 83-2065 and 83-2126

96 Stat. 134 (1982), 42 U.S.C.A. § 1973 (West Supp. 
1983), the fourteenth and fifteenth amendments to the 
U.S. Constitution, various federal civil rights statutes and 
several Illinois constitutional and statutory provisions. 
The district court rejected plaintiffs’ fourteenth and fif­
teenth amendment claims but entered judgment for plain­
tiffs on their Voting Rights Act claim and subsequently 
adopted a new ward map. Plaintiffs now appeal this final 
district court order primarily because they deem the 
relief granted to be insufficient. For the reasons stated 
herein, we affirm in part, reverse in part and remand for 
reconsideration of the appropriate remedy.

I
Background

The City of Chicago is divided into fifty alder manic 
wards, each with nearly equal population and composed of 
contiguous and compact territories. The City Council 
must redistrict the city on the basis of new census data by 
December 1 of the year following the taking of a national 
census. II I . Rev. S tat. ch. 24, § f  21-36 and 21-38 (1981). 
The census taken in 1980 showed that the city population 
was 3,005,072 so that the ideal population per ward would 
be approximately 60,101 (Stipulation of Facts 52, Appen­
dix B to Brief of Defendant-Appellee, The City Council of 
the City of Chicago) [the “Stip.”]. Because virtually every 
ward varied from this ideal figure (Stip. 60), it was neces­
sary for the City Council to devise a redistricting plan by 
December 1, 1981.

The demographic composition of Chicago changed sig­
nificantly between 1970 and 1980 due to a major decrease 
in the size of the white population and increases in the size 
of the black and Hispanic populations. The respective 
population percentages were as follows (Stips. 48 and 
52):'

1 The figure of 247,343 for the Hispanic population in 1970 is 
approximate and based on only a 15% sampling. Stip. 48. In the

(Footnote continued on following page)



In  thf

Hniteii States Court nf Appeals
2For tl\z CHxrmit

Nos. 83-2044, 83-2065 and 83-2126 
Mars K etchum, et al.,

P l a in t i f f s - A  p p e l la n t s ,  

v.

J ane M. Byrne, et al.,
D e fe n d a n ts -A p p e l le e s .

Appeals from the United States District Court for 
the Northern District of Illinois, Eastern Division.

Nos. 32 C 4085, 82 C 4820 and 82 C 4431 
Thomas R. McMillen and Milton Shadur, Judges.

A r g u e d  N o v e m b e r  l ,  1983- D e c id e d  Ma y  17, 1984

B efore WOOD and Cudahy, C i r c u i t  Judges ,  and 
KELLEHER, S e n i o r  D i s t r i c t  Judge.*

Cudahy, C i r c u i t  Judge .  Plaintiffs, including individual 
black and Hispanic residents of the City of Chicago, sued 
several individual defendants and the City Council of the 
City of Chicago alleging that the 1981 redistricting plan 
for the aldermanic wards of Chicago violated section 2 of 
the Voting Rights Act of 1965, 42 U.S.C. § 1973 (1976), 
as amended on June 29, 1982, by Pub. L. No. 97-205, § 3,

* Honorable Robert J. Kelleher, Senior District Judge for the 
Central District of California, is sitting by designation.



Ilf THE UNITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

Nos, 85-2814, 87-2634

WILFRED KEYES, et al. ,
Plaintiffs-Appellees,

and
CONGRESS OF HISPANIC EDUCATORS, et al..

Plaint if f/Interver.ors-Appellees
v,
SCHOOL DISTRICT NO; IT, DENVER, COLORADO, at al., 

Oefendants-Appellants.

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

JOINT BRIEF OF APPELLEES

Norma V. Cantu
Mexican American Legal Defense 

and Educational Fund, Inc. 
314 E. Commerce Street 
Suite 200
San Antonio, Texas 73205

Gordon G„ Greiner 
'• Holland & Hart 

P. 0. Box 8749 
555 17th Street 
Suite 2900 .
Denver, Colorado 30201

Peter Roos'
2111 Mission Street 
Room 401
San Francisco, California 9411C
ATTORNEYS FOR PLAINTIFF/ 
INTERVENORS-APPELLEES

James M. Nabrit, III 
9^ Hudson Street, 16th Fir. 
New fork, New York 10013

ATTORNEYS FOR PLAINTIFFS- 
AFPELLSES