Keyes v. School District No. 1 Denver, CO. Brief for the United States as Amicus Curiae

    J". •'-.....-A'

Nos. 85-2814, 87-2634

IN THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT.

V-’-, V ; • •- ■- v> 5 v V

' m
V

WILFRED KEYES, et al.,
Plaintiffs-Appellees
and ~ ■ ’ ■ -

,—y  r  ■ "

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

, .. - r ■ - . . • rr r1'^  v. -■ ;-:
SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al.,

Defendants-Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLORADO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WM. BRADFORD REYNOLDS
Assistant Attorney General

ROGER CLEGG
Deputy Assistant Attorney 

General
DAVID K. FLYNN 
Attorney
Department of Justice 
Washington, D.C. 20530



Page
INTEREST OF THE UNITED STATES.......................... 1
QUESTIONS PRESENTED......................................
STATEMENT............................................... .
SUMMARY OF ARGUMENT......................................
ARGUMENT:
I. THE DISTRICT COURT FAILED PROPERLY TO DETERMINE 

WHETHER THE DENVER SCHOOL DISTRICT WAS UNITARYIN 1984............................................ .
A. Sustained Compliance With A Comprehensive 

Constitutionally Valid Court-Ordered PlanWill Create A Unitary District............... 3
B. Moreover, The District Court Erred In Its 

Analysis Of The Purported 'Vestiges" OfPast Segregation............................. .
II. ONCE THE DENVER SCHOOL DISTRICT IS UNITARY THE 

DISTRICT COURT SHOULD DISMISS THE LITIGATION 
AND RETURN FULL CONTROL OF THE SCHOOL SYSTEMTO SCHOOL AUTHORITIES............................. .

CONCLUSION.............................................. 20

TABLE OF CONTENTS

- i -



TABLE OF AUTHORITIES

Austin Ind. School Dist. v. United States.429 U.S. 990 (1976)..................................... 14
Columbus Board of Educ. v . Penick.
443 U.S. 449 (1979).....................................  14
Crawford v. Los Angeles Board of Educ..
458 U.S. 527 (1982).....................................  19
Dowell v. Board of Educ.. 795 F.2d 1516 (10th Cir.),
cert, denied, 55 U.S.L.W. 3316 (U.S. Nov. 3, 1986).....  17, 18
Dowell v. Board of Educ.. No. Civ-61-9451-B (W.D. Okla.
Dec. 9, 1987), appeal pending, No. 88-1067 (10th Cir.)..14, 20
General Bldg. Contractors Ass'n v. Pennsylvania.458 U.S. 375 (1982)......................................, 17
Green v. County School Board. 391 U.S. 430 (1968)...... 4, 11, 17
Hills v. Gautreaux. 425 U.S. 284 (1976)................ 3
Keyes v. School Dist. No. 1. Denver. Colo..
653 F. Supp. 1536 (D. Colo. 1987)...................... 2, 13, 17
Keyes v. School Dist. No. 1, Denver. Colo..
609 F. Supp. 1491 (D. Colo. 1985)...................... 2, 11, 13,

16Keyes v. School Dist. No. 1. Denver. Colo..
521 F. 2d 465 (10th Cir. 1975).......................... 9, 15
Keyes v. School Dist. No. 1. Denver. Colo..
380 F. Supp. 673 (D. Colo. 1974)....................... 8-9, 11
Keyes v. School Dist. No. 1. Denver. Colo..
413 U.S. 189 (1973)..................................... 13, i6/ 20
Keyes v. School Dist. No. 1, Denver. Colo..
313 F. Supp. 61 (D. Colo. 1970)........................  15
Keyes v. School Dist. No. 1. Denver. Colo..
303 F. Supp. 279 (D. Colo. 1969)........................  15
Milliken v. Bradley. 418 U.S. 717 (1974)................ 3, 7, 14,
. , 17, 19Milliken v. Bradley. 433 U.S. 267 (1977)................ 17, 19

Morgan v. Nucci. 831 F.2d 313 (1st Cir. 1987)........... 8

Cases: Page

- ii -



Pasadena City Board of Educ. v. Spangler.
427 U.S. 424 (1976).....................................passim
Pitts v. Freeman. 755 F.2d 1423 (11th Cir. 1985).......  19
Price v. Denison Ind. School Dist..
694 F. 2d 334 (5th Cir. 1982).............................
Raney v. Board of Educ. . 391 U.S. 443 (1968)........... 7-8
Riddick v. School Board of Norfolk. 784 F.2d 521 
(4th Cir.), cert, denied, 55 U.S.L.W. 3316
(U.S. Nov. 3, 1986)...................................... 13, 18, 19
Ross v. Houston Ind. School Dist..
699 F. 2d 218 (5th Cir. 1983)...........................  13
San Antonio School Dist. v. Rodriguez.411 U.S. 1 (1973)...................................... 19
South Park Ind. School Dist. v. United States.439 U.S. 1007 (1978)....................................4, 6
Spangler v. Pasadena City Board of Educ.
611 F. 2d 1239 (9th Cir. 1979)..........................  10, 13, 18
Swann v. Board of Educ.. 402 U.S. 1 (1971)............. passim
las by v. Wright. 713 F.2d 90 (5th Cir. 1983)...........  16
United States v. Montgomery Countv Board of Educ..395 U.S. 225 (1969)......................................
United States v. Overton.
834 F. 2d 1171 (5th Cir. 1987)..........................  18-20
United States v. Swift & Co.. 286 U.S. 106 (1932)...... 7
United States v. Texas. 509 F.2d 192 (5th Cir. 1975)___18
Vaughns v . Board of Educ. of Prince George's Countv.758 F. 2d 983 (4th Cir. 1985)........................... .
Wright v. Council of Emporia. 407 U.S. 451 (1972)...... 7

Statutes:
Equal Educational Opportunity Act of 1974,20 U.S.C. 1701...........................................

Cases (continued): Page

- iii -



Civil Rights Act of 1964, as amended
Title IV, 42 U.S.C. 2000C-6............................. 1
Title VI, 42 U.S.C. 2000d.......................... 1
Title IX, 42 U.S.C. 2000h-2........................ 1

Miscellaneous:
Rule 60(b)(5), Fed. R. Civ. P.......................... .
Wright & Miller, Federal Practice and Procedure § 2863 (2d ed. )..........................................

Statutes (continued): Page

- iv -



IN 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.,
Plaintif fs-Intervenors-Appellees
v.

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

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLORADO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES
This case raises issues involving appropriate judicial 

supervision of desegregating school districts. The United States 
has responsibility for enforcing school desegregation under 
Titles IV, VI, and IX of the 1964 Civil Rights Act, 42 U.S.C. 
2000c-6, 2000d, and 2000h-2, and the Equal Educational Oppor­
tunities Act of 1974, 20 U.S.C. 1701. The United States 
participated as amicus curiae on behalf of the school district 
before the district court.

QUESTIONS PRESENTED
1. Whether the district court correctly determined that the 

Denver school system has not achieved unitary status.
2. Whether the district court may appropriately enter a 

permanent injunction governing future student assignment 
practices after finding the system has achieved unitary status.



2
STATEMENT

We summarize briefly here the district court's orders being 
appealed, but otherwise rely on the parties' statements of facts.

On June 3, 1985, the court held that Denver had not achieved 
unitary status, because it allowed some schools to become 
racially imbalanced (609 F. Supp. 1491, 1508), and failed to 
fully desegregate faculties and transfer policies (id. at 1514). 
The court was also concerned that ultimate adoption of a 
neighborhood plan, over existing residential segregation, would 
destroy the system's balance (id. at 1515, 1519-1520), and stated 
that it would eventually enter permanent injunctive relief to 
prevent future de jure or de facto "resegregation" (id. at 1516).

On February 25, 1987 (653 F. Supp. 1536), the court reviewed 
Denver's responses to the June 3, 1985, opinion. On October 6, 
1987, the court changed the desegregation plan in minor respects.

SUMMARY OF ARGUMENT
Good faith compliance with a comprehensive, constitutionally 

valid desegregation plan for a sustained period of time will 
necessarily remove the evil of de jure segregation, including all 
unacceptable vestiges thereof, notwithstanding any remaining de 
facto imbalances in student attendance. The record reflects such 
sustained good faith compliance in this case, and accordingly the 
district court should have held the school system unitary. This 
is particularly so here, where all conditions that arguably were 
vestiges of the prior discriminatory system —  viz. racially 
identifiable schools and residential segregation —  have been 
remedied. Accordingly, the dual system has been eliminated.

Therefore, this Court should reverse the orders below and



3
remand with instructions to dissolve the outstanding desegre­
gation orders and dismiss the case. The district court also 
should be instructed that no permanent injunction may force the 
district to maintain racial balance after the district is found 
unitary. Once unitariness is achieved, the maintenance of 
racial balance is beyond the courts' remedial authority.

ARGUMENT
I. THE DISTRICT COURT FAILED PROPERLY TO DETERMINE WHETHER 

THE DENVER SCHOOL DISTRICT WAS UNITARY IN 1984.
A. Sustained Compliance With A Comprehensive.

Constitutionally Valid Court-Ordered Plan Will Create a Unitary District.
1. Federal courts are "required to tailor 'the scope of the 

remedy' to fit 'the nature and extent of the * ■* * violation.'" 
Hills v. Gautreaux. 425 U.S. 284, 293-294 (1976), quoting 
Milliken v. Bradley. 418 U.S. 717, 744 (1974) (Milliken T). 
Judicial remedial powers of a federal court can "extend no 
farther than required by the nature and the extent of that 
violation." General Building Contractors Ass'n v. Pennsylvania. 
458 U.S. 375, 399 (1982) . See also Milliken I. supra. 418 U.S. 
at 746. Once the unconstitutional conditions caused by the 
school district's prior violations have been redressed by an 
appropriately tailored remedy, a declaration of unitariness is 
warranted. As explained in Swann v. Board of Educ.. 402 U.S. 1, 
31-32 (1971), a federal court's remedial authority expires "once 
the affirmative duty to desegregate has been accomplished and 
racial discrimination is eliminated from the system."

Furthermore, principles of repose and equity dictate that a 
plan not be entered as a "final order" unless it will be



4
effective, and that if a plan is not effective, the parties 
should move quickly to have it changed according to the usual 
procedures for modifying injunctions. See Green v. Countv School 
Board. 391 U.S. 430 (1968). The parties must be required to put 
in place plans that promise "to work now." Id. at 439 (emphasis 
in original). By creating unitary districts, the implementation 
of such valid plans promises to end the "interminable pendency of 
school desegregation litigation." South Park Ind. School Dist. 
v. United States. 439 U.S. 1007 (1978) (Rehnquist & Powell, JJ., 
dissenting from denial of certiorari) .-i/

From the principles outlined above, it follows that a 
constitutional violation will be remedied —  that is, the school 
system becomes unitary —  and the remedial authority of the court 
should be extinguished when a desegregation plan judicially 
determined to be adequate to eliminate the cpnditions attri­
butable to the violation has been implemented fully and in good 
faith.-2/ Both of these fundamental principles —  (1) that the 
question of unitariness is to be determined solely by reference 
to whether the school authorities have fully complied with a 
judicially ordered remedial plan, and (2) that full compliance 
with such a plan terminates the remedial authority of the

General civil procedure supports these principles as well. A 
final desegregation plan is a final judgment; motions to modify 
it should be made promptly; and satisfactory implementation of a 
judgment should normally discharge defendant's duties under it. See generally Fed. R. Civ. P. 60(b)(5).

As discussed infra. at pages 9-16, even if good faith 
compliance does not settle the issue of unitariness, it creates 
a strong presumption that the vestiges of segregation have been eliminated and unitariness has been achieved.



5
district court —  were applied by the Supreme Court in Pasadena 
City Board of Educ. v. Spangler. 427 U.S. 424 (1976).

The district court in Spangler established in 1970 a 
system-wide student assignment plan. Like Denver, the school 
district achieved the racial percentages mandated in the first 
year of the plan's implementation, but gradually "slipped out of 
compliance" (id. at 433) with the required percentages. The 
Supreme Court ruled that the school district could not be held to 
meeting those percentages. Noting that no party had appealed 
from the district court's 1970 judgment adopting the school 
desegregation plan, the Court identified the essential question 
in the case as "the extent of a district court's authority in 
imposing a plan designed to achieve a unitary school system 
* * *." Id̂ _ at 429. The Court emphasized that the desegregation 
plan ordered by the district court was "designed to achieve a 
unitary school system" (id^ at 429), and that "[t]here was * * * 
no showing * * * that those post-1971 changes in the racial mix 
of some Pasadena schools which were focused upon by the lower 
courts were in any manner caused by segregative actions 
chargeable to the defendants." Id. at 435.2/ in conclusion, the 
Court stated (id. at 436-437) (first emphasis in original; second 
emphasis added):

In this case the District Court approved a plan
designed to obtain racial neutrality in the attendance
of students at Pasadena's public schools. No one

2/ see also Swann, supra. 402 U.S. at 31-32 ("[N]either school 
authorities nor district courts are constitutionally required to 
make year-by-year adjustments of the racial composition of 
student bodies once the affirmative duty to desegregate has been 
accomplished and racial discrimination through official action is eliminated from the system.")



6
disputes that the initial implementation of this plan 
accomplished that objective. That being the case, the 
District Court was not entitled to require the [school 
board] to rearrange its attendance zones each year so 
as to ensure that the racial mix desired by the court 
was maintained in perpetuity. For having once 
implemented a racially neutral attendance pattern in 
order to remedy the perceived constitutional violations 
on the part of the defendants, the District Court had 
fully performed its function of providing the appro­
priate remedy for previous racially discriminatory attendance patterns.
Given the binding nature of Denver's remedial decree, and 

its effectiveness in practice, the issue, as in Spangler, is 
whether any fluctuations in the schools' racial mix during 
implementation of the remedial scheme affords a basis for 
modifying the plan. But since Denver's assignment plan dictates 
precisely where pupils are to attend school, any such changes 
during the remedial period result from demographic changes within 
the city, and Spangler makes clear that such normal movement of 
private actors is not attributable to the Board and thus is not 
properly the object of a remedial order designed to eliminate 
state-imposed segregation. Spangler teaches that, once a 
constitutionally acceptable, properly tailored student assignment 
plan has been put in place by court order, prior segregative 
pupil assignments are remedied when the requirements of the plan 
have been fully implemented by school authorities.-^

Given full compliance, unitariness may not be denied merely

4/ This is true regardless of whether full implementation of the 
plan successfully achieved for all schools in the system the 
particular racial balances the plan projected. See South Park. 
supra. 439 U.S. at 1011 (Rehnquist, J., Powell, J., dissenting 
from denial of certiorari). The racial percentages actually 
achieved under the plan are relevant to the unitariness inquiry 
only insofar as they are probative of post-judgment intentional 
segregative conduct or bad faith implementation of the plan.



7
because of a belated concern with the effectiveness of the 
original order. De novo review of all aspects of the Denver 
school system, without reference to compliance with existing 
remedial orders, would be impractical and inappropriate. It is 
late in the day for the courts to begin all over again the 
process of redrawing student assignments.^/ Nor does a charge 
that the remedial plan has proved "ineffective," where that 
means only a failure to maintain complete racial balance in the 
school system, provide a basis for this Court to revisit the 
question of the adequacy of relief. The fact that some schools 
in the system do not have a particular racial balance in no way 
precludes the system as a whole from being declared unitary. The 
Constitution does not require, either as a matter of right or as 
a matter of remedy, a particular racial balance in public 
schools. Spangler, supra. 427 U.S. at 438; Swann. supra. 402 
U.S. at 24; Wright v. Council of Emporia. 407 U.S. 451, 464 
(1972). "The clear import * * * from Swann is that desegrega­
tion, in the sense of dismantling a dual school system, does not 
require any particular racial balance in each 'school, grade or 
classroom.'" Milliken I. supra. 418 U.S at 740-741.£/

■£/ Such a wide-ranging de novo inquiry would conflict with the 
legal principles governing finality of judgments. Nor does this 
Court's inherent equitable authority to modify its outstanding 
injunctive decrees empower the court to entertain a belated 
challenge to the validity of the decree. The availability of 
modification "is not a substitute for an appeal. It does not 
allow relitigation of issues that have been resolved by the 
judgment." Wright & Miller, Federal Practice and Procedure § 
2863 (2d ed. at 206); see United States v. Swift & Co.. 286 U.S. 106, 119 (1932).
£/ We caution that, when initially fashioning a desegregation 
remedy, courts should consider the extent to which the proposed

(continued...)



8
2. The issue of whether a school district is now unitary is 

a factual one, and ordinarily the district court is in the best 
position to make the initial assessment of those facts. See, 
e.q.. Morgan v. Nucci. 831 F.2d 313 (1st Cir. 1987). An 
appellate court must be wary of overturning a district court's 
determination of unitariness, on the one hand, or itself making a 
determination of unitariness, on the other.

In this case, however, the record presented to the district 
court at the 1984 hearing was sufficient to establish that Denver 
faithfully complied with the 1976 desegregation plan, creating a 
unitary district. The district court's conclusion to the 
contrary was based entirely on faulty legal analysis, not on 
factual determinations. For this reason —  and because of the 
importance of returning local control over school affairs to the 
citizens as soon as appropriate and the two year delay in 
consideration of this appeal —  we believe it is appropriate for 
this Court to determine now that Denver was entitled to a finding 
of unitariness based on the 1984 district court record.

There can be no doubt that the desegregation plan which the 
school district adopted here was designed to desegregate in toto 
the school system.2/ There is no evidence suggesting that Denver

£/(...continued)
remedial plan will leave in place predominantly one-race schools or other severe racial imbalances attributable to prior 
segregation, in order to gauge whether the plan will be 
"effective" in dismantling the dual system. Swann, supra: Ranev 
V. Board of Educ.. 391 U.S. 443 (1968). That inquiry was made here.
2-/ In 1974, the district court adopted a "system-wide plan of 
desegregation" to eliminate the prior dual system "root and 
branch." Final Judgment and Decree of April 17, 1974. See also

(continued...)



9
officials have not implemented the desegregation plan, are now 
discriminating on the basis of race, or had, during the 
implementation of the plan, attempted to subvert the judicial 
process. Thus, the system should be declared unitary.

B. Moreover. The District Court Erred In Its Analysis 
Of the Purported "Vestiges" Of Past Segregation.

Even if de novo analysis of the vestiges of segregation were 
permissible, the court still would have erred in its analysis.

1. The vestige inquiry cannot be an uncabined one. It is 
impossible for anyone to undo the past completely, let alone a 
school board, whose powers are quite limited. Thus, the 
elimination of every possible result of past segregation cannot 
be a requirement for unitary status. Instead, under Swann's 
framework, the district court's original findings of discrimina­
tion should serve as the guide to which discriminatory 
conditions the desegregation plan was intended to eliminate. See 
Swann, supra. 402 U.S. at 15, 22; pages 13-16, infra.

Similarly, even if compliance with the plan is not disposi­
tive in the unitariness inquiry, it is entitled to great weight.
A final, valid desegregation plan is designed to create a unitary 
district. Compliance with such a plan over a number of years

(...continued)
380 F. Supp. 673, 682-685. On appeal, this Court modified the 
plan somewhat to insure complete desegregation of the entire 
school district. 521 F.2d 465, 477-478, 484-485. The 1976 Plan, 
"fully approved by this court," incorporated the changes 
necessary to "carry out the mandate of the Court of Appeals for 
the Tenth Circuit." Order of March 26, 1976, at 3. The Order 
entered in 1976 together with the unmodified portions of the 1974 
Plan was a comprehensive, system-wide desegregation plan which 
both the district court and this Court viewed as a final and 
complete remedy that, if fully and faithfully implemented, would 
entirely dismantle the dual system.



10
necessarily belies that there is ongoing discrimination; extended 
compliance demonstrates a change in official attitudes and a 
willingness to "play by the rules." And maintenance of a plan 
which eliminates discrimination in all aspects of school 
operations will necessarily, over time, eliminate the dis­
criminatory effects of past violations as well. Remaining 
racial imbalances —  though once the intended result of official 
segregation —  are simply no longer traceable to official policy.

The Supreme Court's Spangler decision demonstrates at least 
that substantial compliance should be given heavy weight. It 
would be quite anomalous if a district court were barred from 
making periodic adjustments in a valid, complied-with plan, as 
Spangler held, but could at the same time deny indefinitely a 
determination of unitariness for failure to make these adjust­
ments. As Judge Kennedy stated when finding the Pasadena school 
system unitary after Spangler. "[f]rom the standpoint of racial 
balance in pupil assignments, compliance with the Pasadena Plan 
for nine years is sufficient in this case, given the nature and 
degree of the initial violation, to cure the effects of previous 
improper assignment policies." Spangler v. Pasadena City Board 
of Educ.. 611 F.2d 1239, 1245 (1979) (concurring).

Finally, if compliance with a comprehensive, constitu­
tionally valid court order is not given substantial weight, then 
courts examining the "vestiges" question will have little else to 
look to except the raw numbers of student enrollment. But Swann 
and Spangler explicitly warn that racial balance in every school 
in the system is not required.

2. Applying these principles to this case, we think it



11
clear that the only two arguable remaining vestiges of the 
district's past discrimination have been eliminated.

(a) Racial Identifiability. The district court failed 
properly to assess the school district's progress in student 
assignment because of its misunderstanding of Spangler. Although 
the court acknowledged that the plan succeeded in desegregating 
the system in 1976-1977, 609 F. Supp. at 1508, it faulted the 
school system for later permitting schools, without regard for 
the reasons for the enrollment patterns, to fall out of the +15% 
compliance range. Id. at 1501, 1506-1507; see also 474 F. Supp. 
1265, 1270. Thus, contrary to Spangler, the court clearly held 
that unitariness required maintenance of racial balance.

The 1976 plan, with which Denver faithfully complied until 
seeking unitary status, ended the student assignment segregation 
of all the schools in Denver, and the plan continued to work well 
after the 1976-77 school year. The district court held, in its 
1984 opinion, that during the 1976-77 year Denver "can be 
considered desegregated with respect to pupil assignments" (609 
F. Supp. at 1508). Over the next five years, only a few schools 
each year fell outside the +15% range (Def. Ex. A-2). By the 
1981-82 school year there were, out of 118 schools, only 18 
outside the +15% range, and only 3 significantly outside the 
range. Moreover, the district court earlier acknowledged that 
the +15 range was not a firm requirement, but merely a "guide­
line" (380 F. Supp. at 686). By thus eliminating the racial 
identifiability of school enrollments, implementation of the 1976 
plan met the purposes enunciated in Green and Swann.

The increase in the number of schools which fell outside



12
the +15% range after the 1982 Consensus Plan was adopted does not 
establish that the school system was not unitary in 1984. First, 
the district court expressly permitted Denver to implement that 
plan. Second, no school fell so far outside the guideline as to 
be racially identifiable. As of 1983-84, while the school system 
was 37.2% Anglo (Def. Ex. A-2), only one (Harrington) of the 
system's 80 elementary schools was less than 15% Anglo, and only 
six over 60% Anglo. There were no one-race schools in Denver in 
1983; of 108 schools in the system, the court identified only six 
which were heavily minority. Unitariness does not require 
perfectly racially balanced schools; indeed, even some ''one-race" 
schools may be permissible. See Swann, supra. 402 U.S. at 25-26; 
see also Price v. Denison Ind. School Dist.. 694 F.2d 334 (5th 
Cir. 1982) (rigid percentages particularly inappropriate where a 
district's overall minority enrollment is growing).

In addition, the faculty desegregation plan achieved its 
purpose of eliminating racial identifiability of schools through 
faculty assignments. Faculties were well desegregated from 1974 
(when the faculty desegregation plan was first implemented) 
through 1984. The overall percentage of teachers in Denver went 
from 83.1% Anglo to 75.3% Anglo from the 1975-76 to the 1983-84 
school year (Def. Ex. B-l, B-2), and only 16 times between 1974 
and 1984 did any schools have faculties less than 50% Anglo 
(jfcjflt)• See United States v. Montgomery Countv Board of Educ.. 
395 U.S. 225 (1969) (approving faculty desegregation order with 
broad range of permissible faculty ratios).

In sum, the evidence relating to Denver's continued 
compliance with the desegregation plan, and the plan's success



13
regarding student and faculty desegregation,^ shows that Denver 
had eliminated the racial identifiability of its schools by 1984.

(b) Residential segregation. The district court stated in 
its 1985 and 1987 opinions that Denver's residential segregation 
precluded a finding of unitariness because the school system 
might adopt a neighborhood plan. See 609 F. Supp. at 1514, 1519- 
1520; 653 F. Supp. at 1541. But residential segregation is not a 
basis for holding that the school system is not unitary.

Although the Supreme Court has recognized that school 
segregation may improperly exploit, and even encourage, resi­
dential segregation, see Keyes v. School Dist. No. 1. 413 U.S. 
189, 202 (1973); Swann, supra. 402 U.S. at 20-21, courts quite 
logically have focused in making any unitariness determination 
only on the vestiges which affect the desegregation of schools. 
not housing. See Swann, supra. 402 U.S. at 15 ("[t]he objective 
today remains to eliminate from public schools all vestiges of 
state-imposed segregation" (emphasis added)). Many courts have 
declared school systems unitary despite persisting residential 
segregation: Norfolk, Houston and Pasadena are just three 
examples. See Riddick v. School Board of Norfolk. 784 F.2d 521, 
543 (4th Cir.), cert, denied, 55 U.S.L.W. 3316 (U.S. Nov. 3, 
1986); Ross v. Houston Ind. School Dist.. 699 F.2d 218, 226, 228

The school district was well desegregated through 1984 with respect to the other Green factors as well. Plaintiffs did not 
argue below that the school system had retained segregation in 
transportation, facilities, or extracurricular activities. 
Although school officials permitted some transfers pursuant to a 
policy specifically approved by the district court which 
increased minority concentrations at some schools, the effect on 
those schools was £e minimis, and could not justify judicial 
continuation of an otherwise successful desegregation plan.



14
(5th Cir. 1983); Spangler, supra. 611 F.2d at 1245 (Kennedy, J., 
concurring).

This is not surprising, as Swann quite clearly indicated 
that a school desegregation plan may not be expected to undo all 
residential segregation, a task "beyond the jurisdiction of 
school authorities." Swann, supra. 402 U.S. at 22. After all, 
residential segregation exists in almost every major urban area 
and is caused primarily by "social, economic and demographic 
forces for which no school board is responsible." Columbus Board 
of Educ. v. Penick, 443 U.S. 449, 480 (1979) (Powell, J., 
dissenting). At most, Swann requires that the desegregation plan 
remedy that portion of the residential segregation that has been 
found to be tied to school practices; after implementation of a 
school desegregation plan for a substantial period, it must be 
presumed that the effects of past discriminatory practices on 
residential development have been dissipated and that existing 
residential segregation is unrelated to historical school 
discrimination. See Milliken I. supra. 418 U.S. at 756 n.2 
(Stewart, J., concurring); Austin Ind. School Dist. v. United 
States, 429 U.S. 990, 994 (1976) (Powell, J., concurring); Dowell 
v. Board of Educ. of Oklahoma City. No. Civ-61-9451-B (W.D. Okla. 
Dec. 9, 1987), appeal pending, No. 88-1067 (10th Cir.).

In this case, there was not the long history of official 
segregation that might exist in a state in which both school and 
residential segregation was statutorily mandated for many years. 
The district court found that Denver's school authorities had 
manipulated school additions, construction, and attendance zones 
to retain racial separation in the schools for only a ten-year



15
period (1960 to 1969). The evidence indicated that any 
residential segregation prior to this time was de facto. See, 
e.Q.. 303 F. Supp. 279, 282; 313 F. Supp. 61, 64, 75; see also 
521 F.2d at 469, 472. Ten years of discrimination could have had 
only a limited effect on developing residential patterns.

The evidence in the record also suggests that all 
residential segregative effects have been corrected, and that any 
remaining residential segregation cannot be fairly traceable to 
the ten-year period of school segregation. There has been 
residential movement of both whites and minorities into and out 
of Denver during desegregation, suggesting that residential 
movement for minorities was not impeded and that any discrimina­
tory effects were dissipating.2/ This would support a holding 
that current residential patterns are free of discriminatory 
effects of past school board violations.

More fundamentally, the findings of discrimination in this 
case were that residential patterns had driven officials to 
segregate schools —  not vice versa. It is unlikely that 
residential patterns were greatly affected by school segregation, 
since the causation was found to have been exactly the opposite 
way; housing patterns were becoming too integrated to make 
segregation possible without gerrymandering zone lines. There 
is no reason to believe that continued court supervision beyond 
what has taken place will transform whatever residential

^  See Def. Ex. C-19 (Census Maps) (minorities in 1980 were living in areas which had been predominantly white in 1970); 
there was also some testimony that residential movement, after 
the court decree, had become freer and is now quite unrestricted 
(see 4/17/84 Tr. 227-260; 4/20/84 Tr. 913; 5/7/84 Tr. 28, 37).



16
segregation remains. It makes no sense, then, to argue that the 
school system is not unitary because the Board has failed to 
reverse housing patterns it did little to create and can do 
nothing more about. When the benefits of continued judicial 
supervision have diminished and "the relationship between past 
segregative acts and present segregation has 'become so 
attenuated as to be incapable of supporting a finding of de jure 
segregation warranting judicial intervention'", judicial 
supervision should be terminated. Tasbv v. Wright. 713 F.2d 90, 
94 (5th Cir. 1983) (quoting Keyes, supra. 413 U.S. at 211. 12/
II. ONCE THE DENVER SCHOOL DISTRICT IS UNITARY THE DISTRICTCOURT SHOULD DISMISS THE LITIGATION AND RETURN FULL

CONTROL OF THE SCHOOL SYSTEM TO SCHOOL AUTHORITIES.
The district court has made clear its intention permanently 

to restrict Denver's student assignment practices even after 
unitariness is properly found. Thus, the district court stated 
several times that it intends to enter permanent relief governing 
future student assignment, based on the view that permanent 
relief is necessary because any racial imbalance in schools is 
impermissible, whether de facto or de jure. See 609 F. Supp. at 
1516. The district court continuously raised the possibility 
that Denver may ultimately return to neighborhood schools as a 
basis for entering a permanent injunction governing future 
student assignment policies (see 609 F. Supp. at 1514; id. at 
1518, 1519, 1520), and that busing must therefore remain in

This Court, as discussed earlier, may be reluctant to make 
an initial finding of unitariness. In that event, we suggest 
that the Court correct the district court's errors in this 
regard, and remand the case to permit the court to re-analyze the issue of unitariness under proper standards.



17
place. 609 F. Supp. at 1519? see also February 25, 1987, order, 
653 F. Supp. at 1541.U S  Such a permanent injunction would, 
however, be inconsistent with the decisions of the Supreme Court, 
this Circuit, and other courts of appeals.

1. Once unitariness is found, a district court should not 
enter a new injunction regulating future actions, but should 
dismiss the case. We ask this Court to guide the district court 
in this respect, for without such guidance the district court is 
likely to repeat its error once unitariness is found (either by 
this Court or by the district court on remand).

A school desegregation decree is designed to be a temporary, 
remedial measure, and a court should retain jurisdiction only 
until unitariness is achieved. In Green. supra, 391 U.S. at 439, 
for instance, the Supreme Court stated that courts are to retain 
jurisdiction over school desegregation cases "until it is clear 
that state-imposed segregation has been completely removed."12J 
This Court, in Dowell v. Board of Educ.. supra. 795 F.2d 1516, 
1521 (10th Cir.), cert, denied, 55 U.S.L.W. 3316 (U.S. Nov. 3, 
1986), stated that the district court may dismiss the litigation 
if it holds that the achievement of unitary status is a "'sub­
stantial change in law or facts'" from those existing at the time

The language in the Colorado Constitution, we should note, does not necessarily apply to instances of de jure, versus de 
facto, segregation. Cf. Swann, supra. 402 U.S. at 16-18. In 
this case, indeed, the school board is on record as opposing 
abandonment of the current student assignment system.

See also Swann, supra, 402 U.S. at 15; Milliken v. Bradley. 
433 U.S. 267, 280 (1973) (Milliken II); General Bldg. Contractors 
Ass^n, supra, 458 U.S. at 399 (judicial power may "extend no further than required by the nature and extent of the 
violation"); Milliken I. supra. 418 U.S. at 744-755.



18
of the initial violation. In our view, a proper finding of 
unitariness necessarily means that circumstances are different 
from those existing at the time of the original violation. A 
finding of unitariness means discrimination has ceased and 
implementation of the desegregation plan has effectively 
dismantled the unconstitutional dual school system. Thus, a 
proper finding of unitariness is a finding that "the dangers 
prevented by the injunction 'have become attenuated to a 
shadow.'" Ibid. Other courts of appeals, particularly the Fifth 
Circuit (which has jurisdiction over many court-ordered desegre­
gation plans), have established that once a school district has 
eliminated the vestiges of past discrimination, the desegregation 
case should be dismissed and full control of the school district 
returned to school authorities.12/

The necessity for prompt and proper termination of judicial 
supervision of school districts once unitariness is achieved is 
accentuated by the fact that the indefinite continuation of the 
court's order is not costless. It substantially disrupts normal 
local control over public education; continued judicial super­
vision over a district which has cleared itself of its prior 
violation is indeed "oppressive." Dowell. supra. 795 F.2d at 
1521. Local control properly may be displaced until officials 
meet "their obligation to proffer acceptable remedies," Swann.

12/ See, g.g., United States v. Texas (San Felipe Del Rio School 
District), 509 F.2d 192, 194 (5th Cir. 1975), ("it has never been our purpose to keep these cases interminably in the federal 
courts"); United States v. Overton. 834 F.2d 1171 (5th Cir.1987); Spangler v. Pasadena City Bd. of Educ.. supra 
(particularly the concurring opinion of Judge (now Justice) 
Kennedy), 611 F.2d at 1242-1244); Riddick, supra. 784 F.2d at 535.



19
supra, 402 U.S. at 16? but after they have implemented those 
remedies, timely restoration of local control becomes an 
important consideration. See also Milliken I. supra. 418 U.S. at 
741-742? Milliken II. supra. 433 U.S. at 280-281? San Antonio 
School Dist. v. Rodriquez. 411 U.S. 1, 49-50 (1973)? Spangler. 
supra. 611 F.2d at 1242 (Kennedy, J., concurring).

2. Once unitariness is declared and full control is 
returned to local authorities, those authorities are again 
governed by traditional equal protection standards which prohibit 
intentional discrimination. They are no longer subject to the 
standard applied to desegregating districts that all actions must 
be measured by their effect on integration. See Vaughns v. Board 
of Educ. of Prince George's Countv. 758 F.2d 983, 988 (4th Cir. 
1985)? Riddick, supra ? Pitts v. Freeman. 755 F.2d 1423, 1426 
(11th Cir. 1985). "[A]ttaining unitary status * * * means that a
school board is free to act without federal supervision so long 
as the board does not purposefully discriminate? only intentional 
discrimination violates the Constitution.*' United States v. 
Overton, supra. 834 F.2d at 1175.

Given the applicability of the intent standard, a court may 
not prohibit a unitary district's change to a neighborhood system 
merely because that system may result in racially imbalanced 
schools. Accordingly, the Supreme Court found in Crawford v. Los 
Angeles Board of Educ.. 458 U.S. 527 (1982), that adoption of a 
neighborhood plan may not be enjoined solely because the school 
district has some residential segregation. Further, Swann 
establishes that, absent discrimination, a federal court may not 
force upon local school authorities its view of a preferable



20
degree of racial integration (402 U.S. at 16). See also Riddick. 
supra, 784 F.2d at 540; United States v. Overton. supra. 834 F.2d 
at 1176-1177. Many school districts in this country follow a 
neighborhood school policy, see Keyes, supra. 413 U.S. at 245 
(Powell, J. concurring), and Congress has declared "it to be the 
policy of the United States that * * * the neighborhood is the 
appropriate basis for determining public school assignments." 20 
U.S.C. 1701. See also Dec. 9, 1987, district court opinion in 
Dowell v. Board of Educ. of Oklahoma Citv. supra, slip op. 36-39 
(neighborhood plan was adopted for nondiscriminatory reasons).

In sum, the possibility that a neighborhood plan may be 
adopted, even when there is residential segregation, cannot 
justify the extension of school desegregation litigation when 
unitary status has been achieved.

For the reasons stated herein, this Court should reverse the 
orders of the district court and remand this case with directions 
to dismiss the litigation.

CONCLUSION

Respectfully submitted,
WM. BRADFORD REYNOLDS

Assistant Attorney General
ROGER CLEGG

Deputy Assistant Attorney General

DAVID K. FLYNN 
Attorney
Department of Justice 
Washington, D.C. 20530 
(202) 633-2195