Keyes v. School District No. 1 Denver, CO. Motion for Leave to File Brief Amicus Curiae

    ^u p ri'u u ' (Orwrt nf the Im tp ft States
October T erm, 1971 

No. 71-507

I n  t h e

W ilfred K eyes, et al.,
Petitioners,

— v.—

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

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF OF AMERICAN 
CIVIL LIBERTIES UNION AND AMERICAN CIVIL 
LIBERTIES UNION OF COLORADO, AMICUS 
CURIAE, AND BRIEF OF ACLU AND ACLU OF 
COLORADO, AMICUS CURIAE

R ichard F alcon 
D avid B ogen

500 West Baltimore Street 
Baltimore, Maryland 21201

Melvin L. W u lf  
Sanford J ay R osen

American Civil Liberties Union 
156 Fifth Avenue 
New York, N. Y. 10010

E dwin S. K ahn

ACLU of Colorado 
Room 108
1711 Pennsylvania Street 
Denver, Colorado 80202

Attorneys for Amicus Curiae



I N D E X

Motion for Leave to File Brief ...... ............................  1

Interest of Amicus ....................................................... 3

I. The Children of Denver Are Denied Equal Edu­
cational Opportunity Because Their Schools Are 
Racially Segregated .......  3

II. The Denver School System Must Be Desegre­
gated on a System-Wide Basis ......................    7
A. The State Has Created the Segregated School

System ............................................    7

B. The Courts Below Applied a Constitutionally
Defective Standard of Proof the Effect of 
Which Is to Create Two Rules of Constitu­
tional Law: One for the South, One for the 
North ..........................    8

C. The School Boundary Lines Are Unconstitu­
tional Because They Operate to Discriminate 
on the Basis of Race and Are Not Justified by
a Compelling State Interest .............................. 17

PAGE

Conclusion 20



11

Table of A uthorities

Cases:
PAGE

Brewer v. School Board of City of Norfolk, 397 F.2d
37 (4th Cir. 1968) .......... .... ...................................... 11

Brown v. Board of Education, 347 U.S. 483 (1954) ....3, 4, 5,
6, 7,8

Brunson v. Brd. of Trustees, 429 F.2d 820 (4th Cir.
1970)   ................. ................................................... 19

Burton v. Wilmington Parking Authority, 365 U.S.
715 (1961) .................................................................  15

Clark v. Board of Education of Little Bock, 426 F.2d
1035 (8th Cir. 1970) ...... ..........................................  12

Davis v. Board of School Commissioners of Mobile 
County, 402 U.S. 33 (1971) ........................................  12

Evans v. Abney, 394 U.S. 1012 (1969) ........................  11

Gaston County v. United States, 395 U.S. 285 (1969) 12
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .................  11
Green v. County School Board of New Kent County,

391 U.S. 430 (1968) ................................................ 4-5
Griffin v. Prince Edward County School Board, 377

U.S. 218 (1964) ...... .............. ...................................  i l
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..........  12

Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir.
1971) ..........................................................................  12

Henry v. Clarksdale Municipal Separate School Dis­
trict, 409 F.2d 682 (5th Cir.), cert, denied, 396 U.S.
940 (1969) 11



I l l

Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) ......  12

Loving v. Virginia, 388 U.S. 1 (1967) ............... .......... 10

McLaughlin v. Florida, 379 U.S. 184 (1964) ..............  10
Monroe v. Bd. of Comm’rs of Jackson, 427 F.2d 1005

(6th Cir. 1970) ..........................................................  12
Monroe v. Board of School Commissioners, 380 F.2d 

955 (6th Cir. 1967), rev’d 391 U.S. 450 (1968) ......  5

Palmer v. Thompson, 403 U.S. 217 (1971) .............11,13
Plessy v. Ferguson, 163 U.S. 537 (1896) ..................... 4

Swann v. Brd. of Comm, of Charlotte-Mecklenburg,
403 U.S. 1 (1970) .....................................................15,18

United States v. Greenwood Municipal Separate 
School District, 406 F.2d 1086 (5th Cir.), cert, denied,
395 U.S. 908 (1969) ..................................................11-12

United States v. O’Brien, 391 U.S. 367 (1968) ..........  13

Constitutional Provision:
United States Constitution

Fourteenth Amendment ....................................... 7

Statute:

Title VII of the Civil Rights Act of 1964 .................  12

Other Authorities:
R est. T orts §500 .................    15
U.S. Dept, of Health, Educ. & Welfare, News Release, 

June 18, 1971 (Table 2-A)

PAGE

4



I n  t h e

i ’itp m iu ' QJmtrt n f th? In itT d  States
October T erm, 1971

No. 71-507

W ilfred K eyes, et al.,
Petitioners,

— v.—

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

Respondents.

on writ of certiorari to the united states court of appeals 
for the  tenth  circuit

MOTION FOR LEAVE TO FILE BRIEF OF AMERICAN 
CIVIL LIBERTIES UNION AND AMERICAN CIVIL 
LIBERTIES UNION OF COLORADO, AMICUS 
CURIAE

The American Civil Liberties Union and the ACLU of 
Colorado have requested the parties in this case to con­
sent to their filing the attached brief amicus curiae out of 
time. The Petitioners have granted their consent. The 
Respondents have declined consent because we could not 
give them assurance that we would “file a brief supporting 
the position of the School District.” The letters of consent 
and non-consent have been filed with the clerk.

The American Civil Liberties Union is a nation-wide non- 
partisan organization of over 170,000 members dedicated 
solely to preservation of the liberties safeguarded by the



2

Bill of Bights and the 13th, 14th and 15th Amendments to 
the United States Constitution. The American (Uvil Uiber- 
ties Union of Colorado is a state affiliate of the ACLU.

The ACLU and the ACLU of Colorado have been par­
ticularly concerned with the pervasive effects of racial dis­
crimination and segregation on American society. They 
participate in numerous law suits challenging racial dis­
crimination and segregation. They take the position that 
effective racial integration of the public schools is a neces­
sary prerequisite to the full and equal protection of the 
laws for Americans of all races and colors.

In the attached brief, the ACLU and the ACLU of 
Colorado provide additional focus on the issues in this 
case which go well beyond the facts of the particular case. 
To place these issues in the larger perspective, they there­
fore respectfully request leave to file the attached brief.

R ichard F alcon

D avid B ogen

500 West Baltimore Street 
Baltimore, Maryland 21201

Melvin L. Wulf
Sanford J ay R osen

American Civil Liberties Union 
156 Fifth Avenue 
New York, N. Y. 10010

E dwin S. K ahn

ACLU of Colorado 
Room 108
1711 Pennsylvania Street 
Denver, Colorado 80202

Attorneys for Amicus Curiae



I n  t h e

© curt at %  llnitth
October T erm , 1971 

No. 71-507

W ilfred K eyes, et al.,

—v.—
Petitioners,

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

Respondents.

on writ of certiorari to the united states court of appeals

FOR THE TENTH CIRCUIT

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AMERICAN CIVIL LIBERTIES UNION OF COLO­
RADO, AMICUS CURIAE

Interest of Amiens

The interest of the amicus appears from the attached 
motion.

I.

The Children of Denver Are Denied Equal Educa­
tional Opportunity Because Their Schools Are Racially 
Segregated.

“Separate educational facilities are inherently unequal.” 
Brown v. Board of Education, 347 U.S. 483, 495 (1954).



4

“To separate [black students] . . . generates a feeling of 
inferiority as to their status in the community that may 
affect their hearts and minds in a way unlikely ever to be 
undone. . . . Segregation with the sanction of law, there­
fore, has a tendency to [retard] the educational and mental 
development of Negro children and to deprive them of 
some of the benefits they would receive in a racial[ly] in­
tegrated school system.” Id. at 494.

The nation must not repudiate Brown. This nation must 
never again accept the argument that “separate but equal” 
is not a badge of inferiority unless “the colored race chooses 
to put that construction on it,” Plessy v. Ferguson, 163 
U.S. 537, 551 (1896). The task of bringing equality of edu­
cational opportunity to the minority children of this nation 
through elimination of racially-identifiable schools has not 
yet been accomplished. We can ill afford to lower this 
standard of equal opportunity in the North, for segrega­
tion is now a more serious problem in the North than in 
the South. Nationwide, 68% of all blacks attended schools 
with student bodies 80-100% black in 1966 and by 1970, 
the figure had dropped to 49%. In the thirty-two North­
ern and Western states, however, 58% of all black students 
still attended such minority-race schools despite the drop 
in the nationwide figures—accounted for, obviously, by the 
dramatic decrease in Southern school segregation. U. S. 
Dept, of Health, Educ. & Welfare, News Release, June 18, 
1971 (Table 2-A). Obviously, then, school segregation is 
not a problem confined to the South and constitutional doc­
trine intended to deal with the problem must not be so lim­
ited as to apply only to the South.

If schools are identifiably “minority race” or “white,” 
if they are more than “just schools,” Green v. County School



5

Board of New Kent County, 391 U.S. 430, 442 (1968), the 
discriminatory injury so zealously to be guarded against 
under Brown occurs. And that injury occurs whether or 
not the school is a northern school or a southern school, 
and regardless of whether the segregation is imposed un­
der a dual or a “neighborhood” school system. What mat­
ters, is the school’s identifiability. as a “minority race” 
school in a system which contains “minority race” schools 
and “white” schools. The identifiability of schools, and the 
resultant injury to students, is largely a matter of society’s, 
and more particularly, of a child’s perception. If a child 
can say (or see or feel) “This is one of Denver’s minority 
race schools—and this is one of Denver’s white schools,” 
the school and the system that creates it, are segregated 
within the meaning of Brown and its progeny—and the 
constitutional harm is accomplished.

This case brings before the Court, for the first time since 
Brown, a school system in which segregation is pervasive 
but in which segregation is not mandated by explicit state­
ments of public policy embodied in legislative enactments. 
It presents the question whether one constitutional stand­
ard prohibiting school segregation is to govern all schools, 
nationwide, or whether the South is to be separately and 
distinctly treated because it has been placed under a “judi­
cial Bill of Attainder.” Monroe v. Board of School Com­
missioners, 380 F.2d 955, 958 (6th Cir. 1967), rev’d 391 
U.S. 450 (1968).

Putting aside for the moment any questions of intent 
or causation, Denver’s schools are racially segregated, so 
segregated in fact, that the District Court concluded that 
“the result [of the Respondents’ actions] is about the same 
as it would have been had the administration pursued dis­



6

criminatory policies, since the Negroes and . . . Hispanos 
. . . always seem to end up in isolation.” 313 F. Supp. 61, 
73. Given this factual context, no matter where he lives 
in the Denver area, the child perceives that some people 
attend “minority race” schools, and other people living else­
where attend “white” schools. This racial identification 
causes the harm condemned under Brown, as amply dem­
onstrated by the record and findings below.

The school age population of the metropolitan Denver 
area is approximately 64% Anglo and 15% black and 21% 
Hispano. If a child were in a school with a similar pro­
portion of students, he would not perceive it as a “minority 
race” school or a “white” school but simply as a school which 
reflects the metropolitan Denver society in which he lives. 
However, in Denver most students attend schools which 
are readily identifiable as either “minority race” schools 
or “white” schools.

When almost every school in an area can be seen to be 
a “minority race” school or a “white” school, when schools 
in an area are not “just schools,” it is obvious that the 
schools are segregated. That this segregation is caused by 
a “neighborhood school policy” does not alter the child’s 
perception, or the injury stemming from the segregation. 
Indeed, plaintiffs produced a number of witnesses to testify 
to the actual educational harm done by this separation of 
the races. They also produced tangible evidence of this 
harm. The District Court in this case expressly found, as 
a fact, that Denver’s segregated school system denied mi­
nority students equal educational opportunity. Arguably 
such evidence and findings should not have been necessary. 
For almost two decades now, this Court has recognized



7

that “Separate educational facilities are inherently un­
equal.” Brown v. Board of Education, supra, 347 U.S. at 
495. This case teaches that the same inequality inheres in 
“neighborhood” schools as in “dual” schools.

II.
The Denver School System Must Be Desegregated on 

a System-Wide Basis.

A. T h e  S ta te  Has C reated th e  Segregated  Schoo l System .

To the extent that the State of Colorado has delegated to 
Respondents the power to determine location, size, atten­
dance boundaries, student assignments, and faculty staff­
ing of the schools in Denver, the exercise of those powers 
is still the state’s responsibility and they must be exercised 
in conformity with the state’s constitutional obligations 
under the Fourteenth Amendment. The Respondents, act­
ing under color of and pursuant to state law located, sited, 
constructed, set attendance zones for, assigned students and 
allocated teachers and resources to all the schools in Den­
ver. Regardless of the mechanism used by the Respondents 
or their purported justifications, the result of their exercise 
of state power is obvious—segregated schools.

The question in this case, therefore, is not whether state 
action has resulted in a segregated school system—that 
clearly has occurred. Rather, the question is whether the 
state, which has exercised its power in a fashion which 
resulted in segregated schools, can be held to have acted 
for reasons which reflects a compelling state interest. In 
other words, having acted in such a manner as to segre­
gate the races in fact, can the state demonstrate justifica­



8

tion of a sufficiently compelling nature so as to excuse the 
effects of its actions! If such justification does not exist, 
then the school system is, within the meaning of Brown, 
segregated and the equity powers of a federal court may 
properly he invoked to remedy the resultant segregation.

The lower courts did not discuss this question. Applying 
the wrong legal rules, they instead deemed the relevant 
question to be the existence or non-existence of “racial mo­
tivation” or “segregative intent” as an explanation for the 
Respondents’ behavior. This was error.

B. T h e  C ourts B elow  A p p lie d  a C onstitu tiona lly  D efective  
S tand a rd  o f  P ro o f the  E ffec t o f  W h ich  Is to  Create Tw o  
R u les  o f  C onstitu tiona l Law : O ne fo r  th e  S o u th , O ne fo r  
th e  N orth .

The District Court considered the evidence in this case 
and found that Respondents were motivated by “segrega- 
tory intent” with respect to the Park Hill schools in Denver. 
Despite the apparent and obvious inconsistency in so doing, 
the District Court also found, with respect to schools other 
than the Park Hill schools, that the Respondents’ actions 
were constitutionally permissible because Respondents were 
not “motivated by either an intention or desire to discrimi­
nate” even though the effects of their actions were “about 
the same as it would have been had the administration pur­
sued discriminatory policies.” 313 F. Supp. 61, 73. The 
Court explained that the segregatory effects which occurred 
at schools other than the Park Hill schools flowed from the 
Respondents’ decision to bow to community sentiment with 
respect to the desirability of racial concentration in schools 
rather than from any desire to discriminate. “They just 
found the consensus and followed it.” 313 F. Supp. 61, 73.



9

Since tlie court failed to find the necessary intent to dis­
criminate with respect to these schools, it felt constrained 
to hold that petitioners failed to prove the existence of un­
constitutionally imposed segregation. The Court of Ap­
peals apparently adopted the same view and based its de­
cision on the proposition that in order for a constitutional 
deprivation to be shown, a plaintiff must prove that a “state 
segregates children in public schools solely on the basis of 
race” because “racially imbalanced schools [are not pro­
hibited] provided they are established and maintained on 
racially neutral criteria.” 445 F.2d 990, 1005.

It is difficult to understand the precise definition given to 
the term “racially neutral” by the lower courts. Obviously, 
a desire to follow community sentiment when that senti­
ment is in favor of “racial concentration,” or segregation, 
is not, in any usual sense of the word, “racially neutral.” In 
fact, action based on such desires clearly is racially moti­
vated. To follow such a consensus necessarily requires acts 
that are segregatory in nature. Similarly, to suggest, as did 
the Court of Appeals, that use of “racially neutral criteria” 
which leads to racial segregation is permissible distorts the 
commonly understood meaning of “racially neutral cri­
teria.” Many criteria are “neutral” on their face, but if the 
effect of their application is segregatory or unduly disad­
vantages a minority race, then such criteria can hardly be 
considered “neutral.” Obviously, both courts were using 
“racially neutral” in a very strained, artificial and legally 
erroneous manner. This ill use becomes more apparent in 
other portions of the opinion of the Court of Appeals. It 
is apparent, from later portions of the opinion focusing 
on the existence of proof of “discriminatory intent” or 
“segregatory desires,” that both courts define “racially neu­



10

tral criteria” as nothing more than criteria which do not, on 
their face, bear proof of such intent or desires. Only on 
such a basis is it possible for a court to suggest that cri­
teria may be racially neutral when their effect, in the face 
of other equally available and less discriminatory alterna­
tives, is foreseeably certain to, and in fact does, segregate 
the races and when, in utilizing such criteria, defendants are 
admittedly following community consensus which prefers 
such segregation. The Court of Appeals further demon­
strates this focus on intention by stating that “The burden 
is on the plaintiffs to prove by a preponderance of evidence 
that the racial imbalance exists and that it was caused by 
intentional state action,” Id., 1006. By “intentional state 
action,” the Court of Appeals meant action pursuant to 
“segregatory intent” or a “racially discriminatory policy,” 
Id., 1006. In short, both lower courts found no state im­
posed segregation, despite the clear segregatory effect of 
the state’s action, because petitioners had failed to prove 
bad faith motivation or bad faith intent to discriminate by 
direct evidence of actual, conscious purpose. Such a read­
ing of the requirements of the equal protection clause is 
clearly erroneous.

When a government drawn or supported classification is 
based on race, and its burdens fall heavily on members of 
a minority race, that law is at least “suspect.” To justify 
it, a state must show a compelling, not simply a rational 
(or “neutral”) basis for the classification. Even if such a 
classification is enacted in order to further a valid state 
interest, it “bears a heavy burden of justification . . . and 
will be upheld only if it is necessary, and not merely ra­
tionally related, to the accomplishment of a permissible 
state policy.” McLaughlin v. Florida, 379 U.S. 184, 196 
(1964); accord, Loving v. Virginia, 388 U.S. 1, 9 (1967).



11

Similarly, and aside from the case of a classification 
scheme which contains racial criteria on its face, a “neutral” 
statutory scheme or a “neutral” course of governmental ac­
tion the objective of which is to segregate the races or dis­
advantage members of a minority race is impermissible; 
it is not merely “suspect” but invalid. “Whatever non-racial 
grounds might support a state’s allowing a county to aban­
don public schools, the object must be a constitutional one, 
and grounds of race and opposition to desegregation do not 
qualify as constitutional.” Griffin v. Prince Edward County 
School Board, 377 U.S. 218, 231 (1964). See also Gomillion 
v. Lightfoot, 364 U.S. 339 (1960). In cases where the classi­
fication scheme or governmental action challenged is not 
racial on its face or in which the objective is not clearly 
apparent, the most telling point is the effect of the govern­
mental action. In such cases, “the focus . . . [is] on the 
actual effect” rather than on motivation, intent, purpose 
or rationalization. Palmer v. Thompson, 403 U.S. 217, 225 
(1971). See also, Evans v. Abney, 394 U.S. 1012 (1969). 
In such cases, if the state has acted in the face of other 
available alternatives and the effect of such action is to dis­
criminate between, or segregate, the races, a prima facie 
case of racial discrimination is made. Thus, courts have 
not permitted school attendance lines to be drawn around a 
residentially segregated neighborhood when other attend­
ance zones are just as feasible. Brewer v. School Board of 
City of Norfolk, 397 F.2d 37 (4th Cir. 1968). Even attend­
ance zones which follow natural or historical boundaries 
have been struck down when they operate to separate the 
races. See Henry v. Clarksdale Municipal Separate School 
District, 409 F.2d 682 (5th Cir.), cert, denied, 396 U.S. 940 
(1969); United States v. Greenwood Municipal Separate



12

School District, 406 F.2d 1086 (5th Cir.) cert, denied, 
395 U.S. 908 (1969); Clark v. Board of Education of Little 
Rock, 426 F.2d 1035 ( 8th Cir. 1970); and Monroe v. Bd. of 
Comm’rs of Jackson, 427 F.2d 1005 (6th Cir. 1970). See 
also Davis v. Board of School Commissioners of Mobile 
County, 402 U.S. 33 (1971).

If the effect of state action is racial segregation and the 
non-raeial justification is weak, there is no need to probe the 
psychological motivation of a legislature and determine 
whether there was in fact a racial purpose. Anyone in­
volved in such a classification will readily perceive that they 
are treated unequally, and courts will agree with the per­
ception. See Jackson v. Godwin, 400 F.2d 529 (5th Cir. 
1968); Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir 
1971).

Statutes prohibiting racial discrimination in voting and 
employment have been construed from this perspective. 
See Gaston County v. United States, 395 U.S. 285 (1969). 
In Griggs v. Duke Power Co., 401 U.S. 424 (1971), an em­
ployer used a standardized test for hiring and promotion 
decisions. The District Court found there was no racial pur­
pose or invidious intent in adopting the test although 
whites generally did better than blacks in taking it; and by 
a split decision, the Court of Appeals affirmed. Neverthe­
less, this Court found that the use of the test violated Title 
VII of the Civil Rights Act of 1964 which made it unlawful 
for an employer “to limit, segregate, or classify his em­
ployees in any way which would deprive . . . any individual 
of employment opportunities . . . because of such indi­
vidual’s race.” The Court ruled that an employment test 
could be used only if it was in fact related to performance 
of the job, and that the employers’ motive in using the test 
was not the significant question.



13

Indeed, any attempt to establish motivation, rather than 
effect is normally impossible and, because they are so 
conjectural even where possible, such attempts normally 
viewed as neither a necessary nor an adequate basis for 
constitutional determination. Palmer v. Thompson, 403 
U.S. 217 (1971); United States v. O'Brien, 391 U.S. 367 
(1968).

Where the effect of a classification is to separate the 
races, persons subject to the classification are likely to be 
harmed severely regardless of whether the classification was 
overtly on racial grounds or not. They should not be put 
to the burden of demonstrating an actual racial motive, in­
tent or purpose. Further, it may prove impossible to pre­
vent deliberate racial discrimination if the discriminator 
need only cite some rational basis not directly and obvi­
ously connected with race to support his action. Individuals 
and states then need only search for an apparent non-raeial 
basis to continue segregation as before. Unless the state is 
forced to demonstrate substantial reasons for action which 
has a racial effect adverse to minority group members, the 
state can continue a policy of segregation behind a facade 
of neutrality.

In any event, it should not matter whether the guarantee 
of equal protection was deliberately denied or not. In this 
case, children have been forced to attend segregated schools 
and the state which requires them to do so can offer no 
compelling justification for its acts. Despite the clarity of 
this point, the Court of Appeals ignored the effect of Re- 
spondents’ actions and held proof of intent necessary. 
Failing this proof by Petitioners the court would not im­
pose a burden of proving a compelling justification on 
Respondents. The Court of Appeals further held that 
segregatory effects that flow from a neighborhood school



14

plan render such a plan constitutionally suspect only when 
adopted by school systems which had previously operated 
under a state law requiring racial segregation. The exis­
tence of the same segregatory effects under the same type 
of school plan, it ruled, are not constitutionally suspect if 
no such statewide law previously existed. 445 F.2d 990, 
1005-6.

Thus, the Court of Appeals in effect laid down two rules 
of constitutional adjudication—one which is correct in that 
it focuses on effects, not intent, but which the Circuit Court 
felt was applicable only to schools located in the South, 
and one which is incorrect in that it focuses on intent rather 
than effect and which the Circuit Court felt was applicable 
only to Northern schools. This anomalous result necessarily 
follows from the lower courts’ holding that proof of present 
constitutional deprivation in Northern schools (but not 
Southern schools) requires proof that the state has “taken 
some action with a purpose to segregate” 313 F. Supp. 61. 
But such proof may be negated by defendants’ assertion of 
some colorably neutral basis for their decisions and actions, 
e.g., a “neighborhood school policy,” even though such de­
cisions and actions resulted, and were known beforehand 
necessarily to result, in segregation, and even though, 
such “neutral criteria” cannot, in any sense, be deemed to 
involve a “compelling state interest.” This result is in­
vidious on both a personal and societal level.

On a personal level, adoption of the two disparate rules 
permits dissimilar treatment of similarly situated school 
pupils, which turns not on proof of the effects of objective 
acts but on the provable intent with which they were per­
formed. To the southern student, therefore, relief from 
the harmful effects of segregation is granted notwithstand­
ing the present “good faith” of the School Board. To the



15

northern student, relief from the harmful effects of segre­
gation is not granted, despite the performance of identical 
acts with identical results—because no provable lack of 
“good faith” exists, even though “It is of no consolation to 
an individual denied the equal protection of the laws that 
it was done in good faith.” Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 725 (1961).

On a societal level, two constitutional rules of conduct 
are mandated. They turn not on the differing effects of 
the objective conduct- but on the existence or non-existence, 
in the ever more remote past, of political and social views 
strongly enough held to be both codified and followed as, in 
the South, rather than simply followed, as in the North. 
A southern school’s decisions even if rationalizable on 
“neutral grounds” are presumed invalid if segregation re­
sults, cf., Swann v. Brd. of Comm, of Charlotte-Mecklen­
burg, 403 U.S. 1, 26 (1970). But according to the lower 
courts, a northern school’s decision, reached on the same 
grounds and with the same effect, are not presumed invalid 
and, indeed, are not provable as constitutionally invalid 
unless proof of the “intent” and “bad faith” with which they 
were taken is also proffered and believed.

The test of “intent” required by the lower courts is not 
even defensible assuming arguendo acceptance of the re­
quirement that proof of an intent to segregate is necessary. 
Action taken with the knowledge of the consequences, where 
such consequences are both foreseeably certain and other 
alternatives are available, is “intentional” action even if 
some of the specific harmful consequences which flow there­
from were not provably desired by the actor. R est. T oets 
§500. Obviously, Respondents here knew that the conse­



16

quences of their decision would be segregated schools when 
they selected, from all the available alternatives, the par­
ticular criteria they utilized in determining student assign­
ments. When the criterion selected is geographical proxi­
mity and schools are built and located within “neighbor­
hoods” in a system with residential segregation, the re­
sulting segregation is foreseeable. So easily foreseeable 
were the consequences of utilization of the “neighborhood 
school criteria” in this case that Respondents had no dif­
ficulty in assigning minority race teachers to schools in 
which minority students were concentrated. The Court of 
Appeals stated that such assignments were “not proof of 
segregative desires,” 445 F.2d 990, 1007, but this misses 
the point of the proof. The Respondents were well enough 
aware of the segregative results of application of their 
selected criteria that they could without difficulty assign 
teachers to schools, on a racial basis. Therefore, it is obvi­
ous that selection of such criteria was made in the light of 
the foreseeability of segregation.

The lower courts’ insistence on proof of “intent” and 
disregard of proof of “effect” in the face of non-segregatory 
alternatives and the absence of compelling justification for 
the alternatives chosen were, therefore, clearly erroneous. 
Despite the lack of proof of “segregative desires,” unless 
the criteria selected were selected because of the exist­
ence of some over-riding and compelling interest, Respon­
dents must be chargeable with responsibility for the segre­
gation that resulted.



17

C. T h e  Sch o o l B o u n d a ry  L ines A re  U nconstitu tiona l Because  
T h e y  O pera te  to  D iscrim ina te  on  th e  Basis o f  R ace and  
A re  N ot Justified  by  a C om pelling  S ta te  In terest.

The Court of Appeals held, in this case, that there is no 
remedy for segregation or the denial of equal educational 
opportunity if execution of that remedy would conflict with 
a school board’s policy of pupil assignment to “neighbor­
hood schools.” 445 F.2d 990, 1004. However, the court did 
not suggest, analyze or weigh any argument that a state’s 
interest in “neighborhood schools” is sufficiently compel­
ling to justify segregation which knowingly and foresee- 
ably flows from its utilization in a given school district. 
And, indeed, there seems to be no justifications, non-racial 
in character, which can be given in the circumstances of 
this case. There may be situations where deviation from 
an attendance system based on proximity is so expensive, 
or so destructive of other legitimate values that such zoning 
is permissible despite segregatory results. This clearly is 
not one such case—no justification was or can be given and 
none was weighed by the Court of Appeals which assumed 
the necessity for such zoning despite its effects.

The real danger of such an assumption, aside from its 
departure from relevant constitutional standards, is the 
mockery it makes of the equal protection clause as it ap­
plies to segregated schools. To deify “neighborhood 
schools” ignores the most obvious fact about such schools, 
—notably the “neighborhoods” which “neighborhood 
schools” serve, are defined by state action. It is the state 
which locates the school initially, which then determines 
its pupil capacity and which finally sets attendance zones 
for the school. In doing so, the state, and not local resi­
dents, is defining the “neighborhood” for the school. When



18

the effect of that state action is to segregate the schools 
racially and when the effect of the state’s definition of 
“neighborhoods” is that the “neighborhoods” are racially 
segregated, there is simply no basis for the suggestion 
that the resulting segregation was not due to state action.

“ ‘Racially neutral’ . . . plans may fail to counteract the 
continuing effects of past school segregation resulting 
from discriminatory location of school sites or distor­
tion of school size in order to achieve or maintain an 
artificial racial separation. When school authorities 
present a district court with a ‘loaded game board,’ 
affirmative action in the form of remedial alteration of 
attendance zones is proper.” Swann, supra, 28.

Aside from ignoring the obvious fact that the state is 
responsible for the “neighborhoods” which “neighborhood 
schools” serve, other justifications offered for such schools 
simply do not meet any rational, not to speak of compel­
ling, standard of justification. To assume that such schools 
are an example of the “free choice” of the parents whose 
children attend them, which choice is manifested by selec­
tion of neighborhoods, ignores all reality. Housing choices 
for blacks and other minorities are not now and have never 
been “free”. School boards must be charged with the knowl­
edge of this fact, therefore rendering such segregation as 
results from utilization of these “neighborhood” criteria 
foreseeably certain. Similarly, even assuming that “neigh­
borhood schools” are somewhat cheaper or administra­
tively more simple, when the educational disparities cre­
ated by such schools are considered, it is difficult to con­
ceive that convenience or economy could justify such a 
pervasive deprivation. No such comparison was even made



19

in this ease but it was clearly demonstrated that reason­
able, feasible, non-segregative alternatives were available. 
Thus here there is no basis for Respondents to assert that 
the segregative choices it made were “compelled” at all.

In short, to assume, as did the Court of Appeals, that a 
school board’s profession of adherence to the concept of 
“neighborhood schools” renders unnecessary all real proof 
of a compelling interest is a proposition wholly without 
merit. In a given case, utilization of “neighborhood 
schools” may, or may not, be justifiable. But if the effect of 
a present plan is segregatory, the state must establish its 
justification by proffer of alternatives and proof of their 
unacceptability. To require any less, given the nature of 
the harm and deprivation and the importance of the remedy, 
is irresponsible. “ . . . [Sjchool segregation is forbidden 
simply because its perpetuation is a living insult to the 
black children and immeasurably taints the education they 
receive. This is the precise lesson of Brown.” Brunson v. 
Brd. of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (con­
curring opinion of Judge Sobeloff). As demonstrated by 
the record and the trial court’s finding in this case, segrega­
tion becomes no less a “living insult” and education is no 
less “tainted” because the state segregated schools are 
all located in state segregated “neighborhoods,” or simply 
because the segregated schools are Northern schools rather 
than Southern schools. In all such schools, Northern or 
Southern, segregation causes the insult and taint. The 
harm and the cause being identical, the remedies available 
and the rules of proof applied in determining the appro­
priateness of such remedies must be identical.



20

CONCLUSION

For the reasons stated, the judgment of the court below 
should be reversed insofar as it reverses the judgment of 
the District Court and the case remanded with directions 
that a comprehensive desegregation plan for the Denver 
School System be implemented.

Respectfully submitted,

R ichard F alcon 
D avid B ogen

500 West Baltimore Street 
Baltimore, Maryland 21201

Melvin L. W ule 
Sanford J ay R osen

American Civil Liberties Union 
156 Fifth Avenue 
New York, N. Y. 10010

E dwin S. K ahn

ACLU of Colorado 
Room 108
1711 Pennsylvania Avenue 
Denver, Colorado 80202

Attorneys for Amicus Curiae

May, 1972



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