Keyes v. School District No. 1 Denver, CO. Brief for Respondents in Opposition

    IN THE

Supreme Court of tfje Mmteti States;
October T erm, 1971

No. 71-507

Wilfred  Keyes, el al.,

Petitioners,
vs.

School D istrict N o. 1, Denver, 
Colorado, et a l ,

Respondents.

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

FOR THE TENTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

William K. Ris
1140 Denver Club Building
Denver, Colorado 80202
Thomas E. Creighton 
Benjamin L. Craig 
Michael H. Jackson 
1415 Security Life Building 
Denver, Colorado 80202
Attorneys for Respondents

November 23,1971
B R A D F O R D  P R I N T I N G ,  D E N V E R



OPINIONS BELOW ...................................................  1

QUESTION PRESENTED ......   1

STATEMENT OF THE CASE................    2

INTRODUCTION................................................ 2

FINDINGS AND CONCLUSIONS OF THE
DISTRICT COURT.....................................  3

(a ) Demographic Characteristics of Denver’s
Negro Population ............................... 3

(b) Construction of New Schools ....................   4
(c) Changes in School Attendance Areas ........  4
(d) Other Claims of Segregation ...........    5
(e) Findings Regarding Educational Opportunity 6

ARGUMENT ...................................................    6

I. THERE IS NO CONFLICT IN THE
DECISIONS .......................................  6

II. THE COURT OF APPEALS DID NOT ERR 
IN HOLDING THAT FEDERAL 
COURTS HAVE NO POWER TO 
REMEDY A SITUATION NOT CAUSED 
BY STATE ACTION.........................  9

III. THIS CASE HAS NO SIGNIFICANT
NATIONAL IMPLICATIONS ........  14

CONCLUSION ............................................................ 15

APPENDIX: MAP

INDEX Page

l



TABLE OF CASES
Bell v. School City of Gary, Indiana, 324 F.2d 209 

(7th Cir. 1963), cert. den. 377 U.S. 924 (1964)
11, 12, 15

Brown v. Board of Education, 347 U.S. 483 (1954)....
4, 10, 11, 13

Davis v. School District of City of Pontiac, 443 F.2d
573 (6th Cir. 1971), cert, den____ U.S_____
(1971) ..................................................................  7

Davis v. School District of City of Pontiac, 309
F.Supp. 734 (1970) ..................... .......................  7

Deal v. Cincinnati Board of Education, 419 F.2d
1387 (6th Cir. 1969), cert. den.___ U.S.
----- (1971),............ .................... ....,................... 11,15

Deal v. Cincinnati Board of Education, 369 F.2d 55 
(6th Cir. 1966), cert. den. 389 U.S. 847 (1967)

11, 15
Douglas v. California, 372 U.S. 353 (1963) .............. 10

Downs v. Board of Education of Kansas City, 336 
F.2d 988 ( 10th Cir. 1964), cert. den. 380 U.S.
914 (1965) ....................................................... 12,15

Green v. County School Bd. of New Kent County,
391 U.S. 430 (1968) ........................................... 12

Griffin v. Illinois, 351 U.S. 12 (1956) ............................ 10

James v. Valtierra, e ta l ,___ .U .S .___ (1971)...........  14

Monroe v. Bd. of Comm’rs of the City of Jackson,
391 U.S. 450 (1968)  ......................................  12

Page

ii



Page
Raney v. Bd. of Educ. of Gould School District,

391 U.S. 443 (1968) ...........................................  12
Springfield School Committee v. Barksdale, 348 F.2d

261 (1st Cir. 1965) .............................................  11
Swann v. Charlotte-Mecklenburg Board of Educa­

tion, 402 U.S. 1 (1971) ...................................... 9, 13
Taylor v. Board of Education of City School District 

of New Rochelle, 294F.2d36 (2nd Cir. 1961), 
cert. den. 368 U.S. 940 (1961)............................ 7, 15

United States v. School District No. 151, Cook
County, Illinois, 404 F.2d 1125 (7th Cir. 1968), 
cert. den. 402 U.S. 943, (1971) ......... ................  15

TABLE OF OTHER AUTHORITIES
Constitution of Colorado, Art. X X ............................  3

iii



IN THE

Supreme Court of tfte United States;
October Term, 1971 

No. 71-507

Wilfred Keyes, et al.,

vs.
Petitioners,

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

Respondents.

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

FOR THE TENTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinions below are as set forth in the Appendices to 
the petition herein and in respondents’ conditional cross pe­
tition No. 71-572.

QUESTION PRESENTED

The question stated by petitioners is not stated in 
terms of the findings of fact in this case. In addition, peti­
tioners have improperly combined the issues of their two 
separate causes of action into one question in an attempt to



2

create an issue of unconstitutional deprivation as to the 
whole, whereas none exists as to that part of the judgment 
petitioners seek to have this Court review.

STATEMENT OF THE CASE

Petitioners’ statement of this case distorts the actual facts 
as found by the district court after preliminary hearing and 
a lengthy trial. Petitioners make certain selective references 
to evidence offered by them, as the basis for their legal 
arguments and theories even though the district court re­
solved conflicts as to such evidence in favor of the respon­
dents. Hence respondents are obliged to restate the case in 
terms of the findings of fact made by the trial court as 
gleaned from its several opinions. References are to the 
opinions below printed in the appendix to petitioners’ 
petition.

INTRODUCTION

The complaint contained two separate causes of action. 
The first cause of action alleged de jure racial segregation in 
certain of the schools in northeast Denver and sought deseg­
regation thereof. The district court found de jure racial segre­
gation existed as to three elementary schools and one junior 
high school and granted the relief sought. The Court of Ap­
peals affirmed.

The second cause of action alleged de jure racial segrega­
tion and a denial of equal educational opportunity in other 
schools in Denver and sought desegregation of all of Den­
ver’s schools. The district court found no de jure racial seg­
regation but did find a denial of equal educational oppor­
tunity in 17 schools which were de facto segregated. The 
Court of Appeals affirmed the finding of no de jure racial 
segregation and concluded that there was no unconstitu­
tional deprivation of equal educational opportunity.



3

The foregoing findings must be considered in light of the 
number of schools in the Denver system comprised of 92 el­
ementary, 17 junior high and 9 high schools totaling 118 
schools.

School District No. 1 was created by Article XX of the 
Constitution of Colorado in 1902. It has never maintained 
separate educational facilities for different races. Pupils in 
the Denver School System are assigned to schools on the 
basis of their residence. School attendance areas are estab­
lished for each school based upon the so-called neighbor- 
hool school policy.

“It is to be emphasized here that the Board has 
not refused to admit any student at any time be­
cause of racial or ethnic origin. It simply requires 
everyone to go to his neighborhood school unless 
it is necessary to bus him to relieve overcrowd­
ing.” (67a)

FINDINGS AND CONCLUSIONS 
OF THE DISTRICT COURT

(a) Demographic Characteristics of Denver’s Negro Popu­
lation

Prior to 1950, the Negro population in Denver was con­
centrated in an area located in the north central part of 
Denver (4a, 47a). (See generally map, appendix). No rec­
ords of the racial composition of the schools serving this 
area were kept. The schools located in this area were 
largely, but not entirely, Negro. The Negro population was 
relatively small and the concentration in that area had de­
veloped over a long period of time. There is no finding that 
any acts of the school district caused or contributed to this 
situation as it existed in 1950 (4a).



4

Beginning in 1950 the Negro population experienced a 
substantial growth and moved eastward very rapidly so that 
by 1960 the Negro population was sizable and had ex­
panded across Colorado Boulevard into the western portion 
of a residential area known as Park Hill. In the 1960’s the 
Negro migration continued rapidly eastward across the 
northern portion of Park Hill, changing the population of 
that area to substantially Negro (4a, 47a).

(b ) Construction of New Schools

Of all the new schools built by the Denver school district 
since the end of World War II (Denver spent over 100 mil­
lion dollars in school construction during that time), the pe­
titioners complain of only two. The first, Barrett Elementary 
School, completed in 1960, was treated in their first cause 
of action. The district court found that it was created as a 
segregated school and this was affirmed by the Court of Ap­
peals (49a). It has been desegregated.

The other school, the replacement of Manual High 
School in 1953, before Brown I.,1 was treated in the second 
cause of action. The new school was built on the old build­
ing’s grounds, and served exactly the same attendance area 
(59a). The district court affirmatively found that no racial 
motivation or segregative effect was present in the replace­
ment of this school (61a, 71a). This was affirmed on ap­
peal (149a).

(c) Changes in School A ttendance A reas

As to the first cause of action, the district court found 
that four minor boundary changes (one in 1962 and three 
in 1964) at two Park Hill elementary schools (Stedman and 
Hallett) and the use of mobile units at one of them, consti­
tuted de jure segregation (50a). This was affirmed by the
1Brown v. Board of Education, 347 U.S. 483 (1954)



5

Court of Appeals (136a) and the district court has ordered 
desegregation. No similar findings were made as to any of 
the other 116 schools in the system.

In their second cause of action, petitioners claimed that 
boundary changes with respect to two other elementary 
schools (Columbine in 1952 and Boulevard in 1962) and 
three secondary schools (Manual High and Cole Junior 
High in 1956 and Morey Junior High in 1962) also contrib­
uted to Negro concentrations in those schools. But the dis­
trict court found that there was no racial motivation in the 
changes (71a, 72a and 73a), that no racial segregation re­
sulted (72a, 73a), and was unable to find, in the case of 
Morey Junior High, that the school was ever segregated 
(73a). The district court summarized by concluding “. . . 
[w]e must reject the plaintiffs’ contentions that they are 
entitled to affirmative relief because of the above-mentioned 
boundary changes and elimination of optional zones. We 
hold that the evidence is insufficient to establish de jure 
segregation.” (75a)

The findings of the district court negate the statements in 
petitioners’ statement of the case and in their statement of 
the question presented that the school district created and 
aggravated racial segregation throughout the entire school 
system.
(d) Other Claims of Segregation

There were no findings by the district court that either 
the “optional zones” or “limited open enrollment” had the 
effect of minority-to-majority transfers or any other segrega­
tive effect. It should be noted that limited open enrollment 
was superseded in 1968 by “Voluntary Open Enrollment” 
which authorized transfers with transportation furnished by 
the district if the transfer had an integrative effect in both 
sending and receiving schools. ( 109a, 118a)



6

(e) Findings Regarding Educational Opportunity
As to some 17 schools located mainly in the central area 

of Denver and having the largest concentrations of Negro 
(9 schools) or Spanish surnamed (8 schools) pupils (77a, 
78a), the district court found that an “equal educational op­
portunity” was not being provided, based on the conclusion 
that racial or ethnic “isolation or segregation per se” (84a), 
“regardless of cause” (86a), was a substantial factor which 
produced low median pupil achievement scores. However, 
the district court also found that other relevant factors con­
stituting major causes of inferior achievement were “home 
and community environment, socioeconomic status of the 
family, and educational background of the parents” ( 84a).

ARGUMENT
I. THERE IS NO CONFLICT IN THE DECISIONS.

This case does not involve a racially segregated school 
system created or aggravated by the defendants. The dis­
trict court found it was not. Petitioners’ statements to the 
contrary are not correct as has been demonstrated in the 
statement of the case.

Racial imbalance in the Denver school system simply was 
not caused or brought about by any actions of the school 
district, except, under the findings of the district court, as to 
3 of 92 elementary schools and, derivatively, one of 17 
junior high schools, all of which were located in northeast 
Denver and were involved in the first cause of action. The 
district court has decreed desegregation of each of such 
schools and petitioners do not claim error with respect 
thereto (99a-121a, A3-A8 in Appendix to conditional cross 
petition). Petitioners themselves elected to treat the schools 
of northeast Denver separately in the first cause of action of 
the complaint and they achieved the remedy sought there­
under.



7

No cases have been cited holding that facts such as those 
found by the district court in this case constitutionally re­
quire desegregation of the entire district. Therefore, there 
can be no conflict in lower court decisions.

As to the second cause of action dealing with schools in 
the core area of the city, the district court expressly found 
that “there is no comprehensive policy” of segregating pu­
pils by race on the part of the Denver school district (74a).

Petitioners incorrectly suggest that this case bears some 
resemblance to the Pontiac case (Davis vs. School District 
of City of Pontiac, 309 F.Supp. 734), where system-wide 
racial balancing was ordered. But in the Pontiac case the 
district court, after acknowledging “that a Board of Educa­
tion has no affirmative duty to eliminate segregation where 
it has done nothing to create it," (emphasis supplied) went 
on affirmatively to find, as a fact, that the board of educa­
tion intentionally acted to create and perpetuate segregation 
throughout the school system and was, therefore, guilty of 
de jure segregation as to the entire system (309 F.Supp. 
741,2). That court then concluded that the school officials 
had an obligation to overcome the effects of such de jure 
segregation, and ordered the desegregation of the entire 
school system. The Court of Appeals (6th Cir.) reviewed 
the findings of fact and concluded that “the findings of pur­
poseful segregation by the school district” were supported 
by substantial evidence and affirmed (443 F.2d 573). The 
Pontiac case thus rested on the same principles applied in 
this case, although the Pontiac case differs profoundly in the 
facts as found by the respective district courts to the extent 
of the de jure segregation found to exist. Indeed, as to the 
violation and remedy, the Denver case more closely resem­
bles another case cited by petitioners,2 where one school 
within the school district was found to have been segregated
2Taylor v. Board of Education of New Rochelle, 294 F.2d 36 (2d cir), 
cert, den., 368 U.S. 940 (1961)



8

by school authorities and where the remedy was to desegre­
gate that school.

Nor do the district court’s findings as to assignment of 
Negro teachers help petitioners. The only specific findings 
of disproportionate assignment of Negro teachers were with 
respect to two of the four schools found to be de jure segre­
gated, namely, Barrett with 52.6% Negro (21a) and Smi­
ley with 23 Negro teachers out of 98 (Def. Exh. S, 31a). 
This does not constitute segregation of faculty and staff in 
the Denver system.

To accept petitioners’ contentions, this Court would have 
to extend the district court’s findings of de jure segregation 
far beyond the four schools found to be so affected. Thus, 
petitioners attack the district court’s findings that there was 
no de jure segregative action by the school district with re­
spect to five other schools in the north central part of the 
city (71a-72a), findings which were sustained by the Court 
of Appeals ( 148a-149a). Petitioners do not assert that such 
findings of the district court were clearly erroneous, or that 
the Court of Appeals erred in sustaining them. Nevertheless, 
petitioners complain that the district court “excused segre- 
gatory acts” on the grounds of remoteness, intervening 
causes, and lack of intent (Petition pp. 18,19). The district 
court did not “excuse” any acts of the district, but found no 
acts constituting de jure segregation as to such schools 
(67a). Such racial imbalance as existed was found by the 
district court to have resulted from housing patterns (71a). 
There was no finding that such housing patterns resulted 
from any public or private discrimination.

Petitioners have not demonstrated a conflict in the deci­
sions of the lower courts on facts such as found by the dis­
trict court and affirmed by the Court of Appeals. Futher, 
the decision of the Court of Appeals is consistent with the



9

recent pronouncements of this Court.3 Therefore, petition­
ers have failed to present a ground for review by this Court 
on the basis of conflict.
II. THE COURT OF APPEALS DID NOT ERR IN 
HOLDING THAT FEDERAL COURTS HAVE NO 
POWER TO REMEDY A SITUATION NOT CAUSED 
BY STATE ACTION.

In their reason numbered II, petitioners contend that the 
Court of Appeals erred in reversing the trial court’s ruling 
that the Constitution is violated by a combination of com­
paratively low median achievement test scores and racial 
imbalance in 17 of Denver’s 118 schools even though it had 
expressly found that such conditions were not caused by 
state action.

Alleged error is not a sufficient basis to grant certiorari 
under Rule 19.1(b) of the rules of this Court and the peti­
tion should be denied for this reason alone.

In any event, the decision of the Court of Appeals on this 
question is correct and in accord with the decisions of this 
Court.

It is clear that the district court relied on so-called de 
facto segregation as the major factor contributing to “un­
equal educational opportunity”.'4
s“Absent a constitutional violation there would be no basis for 
judicially ordering assignment of pupils on a racial basis.” Swann vs. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 27

4Throughout the trial of this case and its appeals, petitioners and the 
district court have used the terms “segregation” and “equal educa­
tional opportunity” generally and without defining them. Segregation 
implies deliberate state action setting persons apart from each other 
on the basis of race unless modified by the term “de facto” which 
indicates the absence of state action. The term “equal educational 
opportunity” was employed by this Court in Brown and in the context 
of that case, this Court said at 347 U.S. 483, 492:

“In these days, it is doubtful that any child may reasonably 
be expected to succeed in life if he is denied the opportunity



10

The district court rejected plaintiffs’ contention that the 
neighborhood school system is unconstitutional if it results 
in segregation in fact (74a). Yet it concluded that segrega­
tion, regardless of its cause, is a major factor in producing 
unequal educational opportunity and hence is unconstitu­
tional (86a-87a).

This circular reasoning was met squarely by the Court of 
Appeals:

“Preliminarily it is necessary to determine 
whether a school which is found to be constitu­
tionally maintained as a neighborhood school 
might violate the Fourteenth Amendment by oth­
erwise providing an unequal educational oppor­
tunity. The district court concluded that whereas 
the Constitution allows separate facilities for 
races when their existence is not state imposed, 
the Fourteenth Amendment will not tolerate ine­
quality within those schools. Although the con­
cept is developed through a series of analogized 
equal protection cases, e.g., Griffin v. Illinois,
351 U.S. 12 (1956); Douglas v. California, 372 
U.S. 353 (1963), it would appear that this is but 
a restatement of what Brown v. Board of Educa­
tion, 347 U.S. 483, 493 (1954) said years ago: 
‘Such an opportunity [of education], where the 
state has undertaken to provide it, is a right which

of an education. Such an opportunity where the state has 
undertaken to provide it, is a right which must be made 
available to all on equal terms.”

Thus it appears clear that the term “equal educational opportunity” as 
used in Brown means that no child should be denied access to the pub­
lic schools solely on the basis of his race. In other words the oppor­
tunity to get an education must be made available by states to all 
equally without regard to race. Respondents are not aware of any 
decision of this Court extending the meaning of that term. Yet peti­
tioners employ the term as though it means equal educational result.



11

must be made available to all on equal terms.’” 
(142a)

❖  ❖  ❖
“The trial court’s opinion, 313 F.Supp. at 81, 82,
83, leaves little doubt that the finding of unequal 
educational opportunity in the designated schools 
pivots on the conclusion that segregated schools, 
whatever the cause, per se produce lower achieve­
ment and an inferior educational opportunity.” 
(143a)

The Court of Appeals quite correctly observed that fed­
eral courts have no power to resolve educational difficulties 
arising from circumstances outside the ambit of state action 
and held that:

“Before the power of the federal courts may be 
invoked, in this kind of case, a constitutional dep­
rivation must be shown. Brown v. Board of Edu­
cation, 347 U.S. 483, 493-95 (1954) held that 
when a state segregates children in public schools 
solely on the basis of race, the Fourteenth 
Amendment rights of segregated children are vio­
lated. We never construed Brown to prohibit ra­
cially imbalanced schools provided they are es­
tablished and maintained on racially neutral cri­
teria, and neither have other circuits considering 
the issue. Deal v. Cincinnati Board of Education,
369 F.2d 55 (6th Cir. 1966); 419 F.2d 1387 
(1969); Springfield School Committee v. Barks­
dale, 348 F.2d 261 (1st Cir. 1965); Bell v. School 
City of Gary, Indiana, 324 F.2d 209 (7th Cir. 
1963).” ( 145a-146a)

The Sixth Circuit had occasion recently to consider 
whether the law has been changed by the decisions of this 
Court5 since Brown:
r,Deal v. Cincinnati Board of Education, 419 F.2d 1387, (6th Cir.
1969), cert, den_____ U.S______(1971)



12

“Appellants petitioned the Supreme Court for 
certiorari in the first appeal and it was denied. 
Certiorari was also denied in Downs and Bell, 
supra. The denial of certiorari in the present case 
ought to constitute our opinion in the first appeal 
as the law of the case, but appellants contend that 
the law has been changed by the recent decisions 
of the Supreme Court in Green v. County School 
Bd. of New Kent County, 391 U.S. 430 (1968); 
Raney v. Bd. of Educ. of Gould School District,
391 U.S. 443 (1968); Monroe v. Bd. of 
Comm’rs. of the City of Jackson, 391 U.S. 450 
(1968).
“In our opinion, these three decisions did not 
change any law applicable to our case and appel­
lants’ reliance on them is misplaced. The gist of 
the holdings in these cases was that in desegregat­
ing a dual school system, a plan utilizing ‘freedom 
of choice’ or a variant ‘free transfer’ is not an end 
in itself and would be discarded where it did not 
bring about the desired result.
“On the other hand, our case involves the opera­
tion of a long-established unitary non-racial 
school system—just schools where Negro as well 
as white children may attend in the district of 
their residence. There is not an iota of evidence in 
this record where any of the plaintiffs or any of 
the class which they represent was denied admis­
sion to a school in the district of his residence.”

This is precisely the finding of fact by the district court in 
the case at bar:

“It is to be emphasized here that the Board has 
not refused to admit any student at any time be­



13

cause of racial or ethnic origin. It simply requires 
everyone to go to his neighborhood school unless 
it is necessary to bus him to relieve overcrowd­
ing.” (67a)

This Court has recently considered its Brown decision in 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971):

“We granted certiorari in this case to review im­
portant issues as to the duties of school authori­
ties and the scope of powers of federal courts 
under this Court’s mandates to eliminate racially 
separate public schools established and main­
tained by state action. Brown v. Board of Educa­
tion, 347 U.S. 483 (1954) (Brown l).

“This case and those argued with it arose in states 
having a long history of maintaining two sets of 
schools in a single school system deliberately op­
erated to carry out a governmental policy to sepa­
rate pupils in schools solely on the basis of race.
That was what Brown v. Board of Education was 
all about.” 402 U.S. 1,5-6.

In defining the scope of the remedial power of federal 
courts in such cases, this Court stated in Swann that:

“. . . [J]udicial powers may be exercised only on 
the basis of a constitutional violation. Remedial 
judicial authority does not put judges automati­
cally in the shoes of school authorities whose 
powers are plenary.” 402 U.S, 1 at 16.

As an example, this Court stated that school authorities 
might well decide that there should be racial balance in 
every school in a district as a matter of educational policy 
and pointed out that, absent a constitutional violation, such



14

would not be within the authority of a federal court. 402 
U.S. 1 at 16.

This review of the basic principles of separation of consti­
tutional powers is appropriate here as the district judge in 
his zeal to do something about educational problems that 
have plagued educators for many years has exceeded his au­
thority by acting in an area where no constitutional viola­
tion exists. The Court of Appeals recognized this excess of 
jurisdiction and corrected it ( 146a).

The holding of the Court of Appeals in this case that the 
neighborhood school policy is constitutionally acceptable, 
even though it results in racially concentrated schools, pro­
vided that the plan is not used as a veil to perpetuate racial 
discrimination, is given support by other language in 
Swann: “All things being equal, with no history of discrimi­
nation, it might well be desirable to assign pupils to schools 
nearest their homes.” 402 U.S. 1 at p. 28. Denver has 
never maintained a dual school system. Denver’s neighbor­
hood school policy was in effect long before there was any 
racial imbalance in its schools, (59a), and thus was never 
utilized as a tool to perpetuate racial segregation. In sum, 
Denver’s neighborhood school policy was and is racially 
neutral (66a) and racially neutral policies of local govern­
ments do not violate the Constitution6 even if they result, as 
in this case, in some racial imbalance.
III. THIS CASE HAS NO SIGNIFICANT NATIONAL 
IMPLICATIONS.

Petitioners conclude their reasons for granting certiorari 
by stating that on either of the grounds discussed by them, 
the decision of the Court of Appeals is wrong and that the 
case should be reviewed because of its national implications 
without stating what these implications might be. Certainly,
6This Court recently applied this same rule in a case involving alleged 
discrimination in low-rent public housing. James v. Valtierra, et al, 
____ U.S______(1971).



15

the national implications of federal judicial entry into the 
field of determining educational policy would be significant, 
but as this case now stands, the Court of Appeals has cor­
rected this excess of jurisdiction leaving the problem of op­
erating public schools throughout the nation where the Con­
stitution intended—in the legislative and executive branches 
of government and not in the judicial branch. No significant 
national implications resulted when this Court declined to 
review other similar holdings.7

These cases have no significant national implications 
largely because they turn on their own facts which are vastly 
different in different areas of the country and vary from dis­
trict to district. No useful purpose would be served by this 
Court's reiterating the elementary rule of constitutional law 
that absent a violation of the Constitution, federal courts are 
powerless to deal with educational problems.
7Taylor v. Board of Education of City School District of New Rochelle, 
294 F.2d 36 (2nd Cir. 1961), cert. den. 368 U.S. 940 (1961); Deal 
v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert, 
den. 389 U.S. 847 (1967); Deal v. Cincinnati Board of Education,
419 F.2d 1387 (6th Cir. 1969), cert, den_____ U.S. , 29 L.Ed.
2d 128 (1971); Bell v. School City of Gary, Indiana, 324 F,2d 209 
(7th Cir. 1963), cert. den. 377 U.S, 924 (1964); Downs v. Board of 
Education of Kansas City, 336 F.2d 988 (10th Cir. 1964), cert. den. 
380 U.S. 914 (1965); and United States v. School District No. 151, 
Cook County, Illinois, 404 F.2d 1125 (7th Cir. 1968). cert, den 
-------U.S---------, 29 L.Ed. 2d 111 (1971).



16

CONCLUSION
For the foregoing reasons, respondents respectfully pray 

that the petition be denied.

Respectfully submitted,

William K. Ris
1140 Denver Club Building
Denver, Colorado 80202

Thomas E. Creighton 
Benjamin L. Craig 
Michael H. Jackson 
1415 Security Life Building 
Denver, Colorado 80202

Attorneys for Respondents



APPENDIX





v ; * ..<. :
f/.: ‘ ■ .,’ ' ■■ >: '

1v?*;- , ’; ■' ‘

» - „ % V .  \  s  •: '■: .>
■• -■",

WmM
>h

:•

" , , ■ ' 1; ; .