Keyes v. School District No. 1 Denver, CO. Brief for Petitioners

    1st the

j5>uprntt£ (llmtrt nf Hit Inttpfc States
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.

OK WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR PETITIONERS

J ack Greenberg 
J ames M. N abrit, III 
Charles S tephen R alston 
N orman J. Chachkin  

10 Columbus Circle 
New York, N. Y. 10019

Gordon G. Greiner 
R obert T. Connery

500 Equitable Building 
Denver, Colorado 80202

Attorneys for Petitioners
A nthony  G. A msterdam

Stanford University Law School 
Stanford, California 94305

Of Counsel



TABLE OF CONTENTS

Opinions Below .............. ......... ....................................  1

Jurisdiction .................... .................................. ........... . 3

Constitutional Provision Involved ...............................  3

Questions Presented ......................................... ............  3

Statement .......................................................................  4

I. Introduction .............   4

II. The Denver School District ............................ 7

III. The Pattern of Racial Segregation    ........... 8

A. Pupils ..............................      8

B. Teachers ~.....................................................  11

IV. Pupil Assignment Policies and Practices ......  13
A. General policies and practices................ . 13
B. The Manner in Which School Authorities’

Decisions Have Determined the Racial Com­
position of Schools ........    18
1. Assigning Faculty by Race ...................  19
2. Size and Location of School Buildings;

Additions to Buildings; Capacity Utili­
zation; Mobile Classrooms ..............   21

3. Transportation Policies ........................  25
4. Establishing and Changing School At­

tendance Areas .......................................  28

PAGE



11

5. Optional Zones and Transfer Devices .... 31
6. Curriculum, Level of Instruction and the

Atmosphere of Segregated Schools......  33

V. Denver’s Segregated Minority Schools Afford 
Their Minority Students an Educational Oppor­
tunity Inferior to That Afforded by Predomi­
nantly Anglo Schools in the District.................  37

A. The Segregated Schools Have Homoge­
neous, Low Social Class Composition Which 
Deprive the Minority Children of an Impor­
tant Element of Learning, a Heterogeneous 
Peer Group ..... ............................................ 39

B. The Quality, Experience and Stability of 
the Teaching Staffs at the Segregated 
Schools Are Significantly Inferior to That
of Denver’s Predominantly Anglo Schools .. 40
1. Teacher Experience ..................    40
2. Teacher Turnover .................................  42
3. Teacher Attitudes...................................  43

C. Inequality of Facilities ...............................  44
D. The Inferiority of the Segregated Schools Is

Also Demonstrated by the Drastically Low 
Level of Academic Achievement Which They 
Produce .......................................................  44

E. Most of Denver’s Minority Children Attend
the Inferior Schools .....................................  47

F. The Fact of the Inequality Has Been Known
for Years by the School Administration.....  47

PAGE



I l l

G-. The School Administration Obfuscated the 
Poor Achievement Results at Minority 
Schools......................... ................... _............  49

H. The District Established Low Achievement
Standards for the Segregated Schools........  50

I. Drop-Out Rates are Highest In the Segre­
gated Schools ................... .......................... . 53

J. The Trial Court Determined that a Cause of 
the Inequality was the Segregated Condition
of the Schools ...................... „......................  53

K. The Respondents’ Own Policies Resulted In
Creating the Inequality of Opportunity....  55

The Trial Court’s Conclusions as to the 
Appropriate Remedy for the Inequality 
of Educational Opportunity.... _...............  56

Events Subsequent to the Trial Court’s 
Opinion of May 21,1970...... ..................... 62

Events Subsequent to the Issuance of the 
Court of Appeals Opinion on June 11,
1971 ..........................................................  64

Summary of Argument ..............................................   65

A rgument—

I. Racial Segregation in the Denver School System 
Violates the Fourteenth Amendment and Should 
Be Remedied by a Comprehensive System-Wide 
Desegregation Plan ................      68

Introduction ...............     68

PAGE



IV

A. Denver’s Unconstitutional Ten Year Policy
PAGE

of Racial Segregation Necessitates a Re­
quirement for System-wide School Desegre­
gation ......... ............. ........................... .........  71

B. Unlawful Segregation in Denver Is Even 
More Extensive Than the Courts Below 
Recognized ................................................... 79

C. Petitioners Proved a Prima Facie Case of 
Unlawful Racial Segregation, But the 
Courts Below Incorrectly Defined the 
Burden of Proving Constitutionality Ac­
tionable School Segregation ..................... 87

II. Denver’s Systematic Disparate and Discrim­
inatory Educational Treatment of Minorities 
Violates Equal Protection and Entitles Peti­
tioners to System-Wide Relief .......... ........ .....  92

A. Denver’s Disparate, Unequal Treatment of 
Minorities in the Provision of Public Ed­
ucation Violates Equal Protection ..............  93

1. The Evidence and Findings Below
Demonstrate That in Denver Minority 
Children Were Consciously Treated Dif­
ferently and Discriminatorily by Re­
spondents’ Policies and Practices When 
Compared to Anglo Children .................. 93

2. The Trial Court’s Determination of
Violation Resulted From the Proper 
Application of Equal Protection Princi­
ples ............ ............................... ......... . 105



V

B. The Remedy Formulated by the District 
Court for the Provision of Equal Educa­
tional Opportunity Was Fully Supported 
by the Record and Within the Bounds of

PAGE

Proper Judicial Discretion  ................. . 116
C. The Remedy Should Have Been Extended 

to All of the District’s Predominantly 
Minority, Inferior Schools ..........................  121

III. Considered Together the Proven Racial Segre­
gation and the Proven Inequality of Educa­
tional Opportunity in Denver Require a
System-Wide Remedial Approach ................... 125

C o n c lu sio n ........ ....................................................... .......................  126

T able of A uthorities

Cases:

Barbier v. Connolly, 113 U.S. 27 (1885) ..... ..................  108
Board of Education v. Dowell, 375 F.2d 185 (10th Cir,),

cert, denied, 387 U.S. 913 (1967) ............. ................. . 113
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970), 438

F.2d 945 (6th Cir. 1971), ----- F. Supp. ------  (E.D.
Mich. 1971) .......................................... ............. ....... 70

Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965) 69
Brown v. Board of Education, 347 U.S. 483 (1954)

68,105,109,114
Brown v. Board of Education, 349 U.S. 294 (1955)..3, 68,117 
Burton v. Wilmington Parking Authority, 365 U.S. 715 

(1961) ......................................................................3,114

Carter v. School Board of Arlington County, Virginia,
182 F.2d 531 (4th Cir. 1950) ................... .................  109



VI

Cisneros v. Corpus Christi Indep. School District, 324
F. Supp. 599 (S.D. Tex. 1970) ................... ................ 124

Clemons v. Board of Education, 228 F.2d 853 (6th Cir.
1956) .... ......................................................................68, 70

Cooper v. Aaron, 358 TJ.S. 1 (1958) .........................3, 70,119
Corbin v. County School Board, 177 F.2d 924 (4th Cir. 

1949) ........................... ...............................................  108

Davis v. School Dist. of City of Pontiac, 309 F. Supp.
734 (E.D. Mich. 1970), aff’d 443 F.2d 573 (6th Cir.
1971), cert, denied 404 TJ.S. 913 (1971) .... ..............70, 87

Douglas v. California, 372 U.S. 353 (1963) ..............106,110
Downs v. Board of Education of Kansas City, 336 F.2d 

988 (10th Cir. 1964) cert, denied, 380 TJ.S. 914 (1965) 113
Dunn v. Blumstein, -----TJ.S. ------ , 40 U.S.L.W. 4269

(Mar. 21, 1972) ............................................... ..........  109

Gayle v. Browder, 352 TJ.S. 903 (1956) ............... ......... 110
Green v. County School Board, 391 TJ.S. 430, 438

(1968) ......... ................................... .....75, 78,117,118,119
Griffin v. Illinois, 351 U.S. 12 (1956) ____ ___ .....106,110
Griffin v. School Board, 377 U.S. 218 (1964) .................  70

Harper v. Virginia State Bd. of Elections, 383 U.S.
663 (1966) ................ ..........................................8,109,110

Haynes v. Washington, 373 U.S. 503 (1963) .............. . 79
Hecht v. Bowles, 321 U.S. 321 (1944)  ................. ........ 116
Hernandez v. Texas, 349 U.S. 475 (1954) ..................... 124
Hobson v. Hansen, 269 F. Supp. 401 (D. D.C. 1967) .... 106 
Hunter v. Erickson, 393 U.S. 385 (1969) ..................... 109

International Salt Co. v. United States, 332 U.S. 392 
(1947) ................. ................ ................... ..................

PAGE

76



Johnson v. Virginia, 373 U.8. 903 (1963) .................. . 110
Jones v. Newlon, 81 Colo. 25, 253 Pac. 386 (1927) ......  68

Keyes v. School District No. One, 396 U.S. 1215 (1969) 6
Korematsu v. United States, 323 U.S. 214 (1944) ___  124
Kramer v. Union Free School District, 395 U.S. 699 

(1969) ...... .............. ............. ........................... ....... 110

Lee v. Washington, 390 U.S. 333 (1968) ..................... 110
Los Angeles Local 626 v. United States, 371 U.S. 94

(1962) ...................................................... .......... ........ 76
Loving v. Virginia, 388 U.S. 1 (1967) ................... .....  108

Mayor and City Council of Baltimore v. Dawson, 350
U.S. 877 (1955) ............................................. ..........  110

McLaughlin v. Florida, 379 U.S. 184 (1964) .................  108
McLaurin v. Oklahoma State Regents, 339 U.S. 637

(1950) ...................... ................... ..... .............. .....107,108
Muir v. Louisville Park Theatrical Association, 347 

U.S. 971 (1954) ........ .................. ...................... ...... 110

Norres v. Alabama, 332 U.S. 463 (1946)........................  110

Oyama v. California, 332 U.S. 633 (1948) ..................... 78

Plessy v. Ferguson, 163 U.S. 537 (1896) ..................... 108

Reynolds v. Sims, 377 U.S. 533 (1964) ..................... 110
Rogers v. Paul, 382 U.S. 198 (1969) .............................. 69

Shapiro v. Thompson, 394 U.S. 618 (1969) .................  109
Shelley v. Kraemer, 334 U.S. 1 (1948) ......................... 108
Skinner v. Oklahoma, 316 U.S. 535 (1942) .................  110
Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873) .... 107

V l l

PAGE



vm

Spangler v. Pasadena City Board of Education, 311
PAGE

F.Supp. 501 (C.D. Cal. 1970) ........... .................25,70,87
Spano v. New York, 360 U.S. 315 (1959)   ...........  78
Stein v. New York, 346 U.S. 156 (1953)  ..................  78
Stell v. Savannah-Chatham County Board of Educa­

tion, 318 F.2d 425 (5th Cir. 1963), 333 F.2d 55 (5th
Cir. 1964 ......................................... ......... . .......  794

Strauder v. West Virginia, 100 U.S. 303 (1880) ___  107
Swann v. Board of Education, 402 U.S. 1 (1971) ....69, 70,

75, 83, 84, 86, 87, 
90,116,117,118,121

Sweatt v. Painter, 339 U.S. 629 ..................21,16,107,108

Taylor v. Board of Education of City Sch. District 
of City of New York Rochelle, 191 F. Supp. 181 
(S.D. N.Y. 1961), appeal dismissed, 288 F.2d 600 
(2nd Cir. 1961), 195 F. Supp. 231 (S.D.N.Y. 1961), 
aff’d, 294 F.2d 36 (2nd Cir. 1961), cert, denied, 368
U.S. 940 (1961) ........................................ ................ 70

Turner v. Fouche, 396, U.S. 346 (1942) ....... ............. 110

United States v. Aluminum Company of America, 148
F.2d 416 (2nd Cir. 1945) ................... ...................  76

United States v. Bausch & Lomb Optical Co., 321
U.S. 707 (1944) .... ............................................... _____ 76

United States v. Board of School Commissioners of 
Indianapolis, 332 F.Supp. 665 (E.D., Ind, 1971) .... 70 

United States v. Montgomery County Board of Educa­
tion, 399 U.S. 225 (1969) ......... .................................. 69

United States v. School Dist. No. 151, 286 F. Supp. 786 
(N.D. 111., 1967), affirmed, 404 F.2d 1125 (7th Cir. 
1968), on remand, 301 F. Supp. 201 (N.D. 111. 1969), 
affirmed, 432 F.2d 1147 (7th Cir. 1970), cert, denied,
402 U.S. 943 (1971) ............ ...................................... 70; 87



IX

United States v. U. S. Gypsum Co., 340 U.S. 76 (1950) 76
United States Gypsum Co, v. National Gypsum Co., 352 

U.S. 457 (1957) ...................... .................................. . 76

Tick Wo v. Hopkins, 118 U.S. 356 (1886) .... 13, 42,108,124

Statutes and Constitutional Provisions
28 U.S.C. §1343 .......................
42 U.S.C. §1983 ....... ................
Consl. Colo., Art. IX, Section 8

Other Authorities
Colorado D epartment of E ducation, H uman R elations 

in  Colorado, A H istorical R ecord (1968) ...... ........  5
Comment, 48 D enver L.J. 417 (1972) ............................ 82
Diamond, School Segregation in the North: There Is 

But One Constitution, 7 Harvard Civil Rights-Civil 
Liberties Law Review 1 (1972) ............................... 89, 91

PAGE

5
5

69



In the

§>u*in>utT (Emtrf of tl?r ^fat^o
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.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR PETITIONERS

Opinions Below

The principal opinions of the courts below are as follows:

1. Opinion of District Court granting preliminary injunc­
tion, July 31, 1969, reported at 303 F. Supp. 279 (App. to 
Pet. for Cert. la-19a).

2. Opinion of District Court making supplemental find­
ings and conclusions, August 14, 1969, reported at 303 F. 
Supp. 289' (App. to Pet. for Cert. 20a-43a).



2

3. Opinions of District Court on merits, March 21, 1970, 
reported at 313 F. Supp. 61 (App. to Pet. for Cert. 44a-98a).

4. Opinion of District Court on remedy, May 21, 1970, 
reported at 313 F. Supp. 90 (App. to Pet. for Cert. 99a- 
121a), and final decree June 11,1970, unreported (A. 1970a).

o. Opinion of Court of Appeals, June 11, 1971, reported 
at 445 F.2d 990 (App. to Pet. for Cert. 122a-158a).

Other opinions filed in this case are as follows:

6. Opinion of Court of Appeals vacating’ preliminary 
injunction, August 5, 1969, unreported (A. 455a).

7. Opinion of Court of Appeals staying preliminary in­
junction, August 27, 1969, unreported (A. 459a).

8. Opinion of Mr. Justice Brennan as Acting Circuit 
Justice reinstating preliminary injunction, August 29, 1969, 
reported at 396 U.S. 1215 (A. 464a).

9. Opinion of Court of Appeals on motion to amend 
stay, September 15, 1969, unreported (A. 467a).

10. Opinion of District Court denying Motions to Dis­
miss, October 17, 1969, unreported (A. 475a).

11. Opinion of Court of Appeals granting stay, March 
26, 1971, unreported (A. 1981a).

12. Per curiam Order of Supreme Court of the United 
States vacating stay, April 26, 1971, reported at 402 U.S 
182 (A. 1984a).



3

13. Opinion by Court of Appeals on Motion for Clarifi­
cation, August 30, 1971, unreported (A. 1987a).

Jurisdiction

The judgment of the Court of Appeals was entered June 
11, 1971 (App. to Pet. for Cert. 159a-160a). On September 
8, 1971, Mr. Justice Marshall granted an extension of time 
for filing the petition for certiorari to and including Octo­
ber 9, 1971. The Petition for Writ of Certiorari was filed 
October 8, 1971, and granted January 17, 1972 (A. 1988a). 
The jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1254(1).

Constitutional Provision Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

Questions Presented

Whether petitioners are entitled to obtain system-wide 
relief to desegregate the Denver public schools because:

1. The district court’s findings that “during the ten year 
period preceding . . . [1969] . . . the Denver School Board 
has carried out a segregation policy” (303 F. Supp. at 287), 
establish that the deprivation of constitutional rights of 
black pupils in Denver is so substantial and systemic as 
to require the use of remedial doctrines applied to dual 
systems created by segregation statutes.



4

2. The district court erred in ruling segregation to be 
“innocent” and lawful in certain schools serving Denver’s 
older black neighborhood—including particularly Manual 
Training High School—because the court applied incorrect 
legal standards and perspectives in making its decision on 
intent to segregate and the causes of segregation.

3. The court below erred in holding that the sole cri­
terion of constitutionally actionable racial segregation was 
segregationist intent judged by the narrow test whether 
decisions of the school board resulting in racial separa­
tion could conjeeturally be explained by any conceivable 
non-racial explanation.

4. The Denver public schools have denied equal pro­
tection of the laws to students assigned to a number of 
predominantly Black and Hispano schools where there is 
manifestly an inequality in educational opportunity, both 
from the standpoint of the input resources placed in the 
schools by the school board and the educational achieve­
ment of the pupils.

S ta tem en t

I. Introduction.

This suit was commenced June 19, 1969, by petitioners, 
the parents of eleven children attending the Denver pub­
lic schools, who seek injunctive and declaratory relief to 
remedy racial segregation of children and faculty and 
racial discrimination in the district’s provision of public 
education. A. 3a. The complaint alleged that the district’s 
practices violated the Equal Protection Clause of the Four­



5

teenth Amendment to the Constitution of the United States, 
and invoked the civil rights jurisdiction of the United 
States District Court for the District of Colorado. 28 
U.S.C. §1343, 42 U.S.C. §1983. A. 4a. Plaintiffs asked for 
“a comprehensive plan for the school district as a whole” 
to remove segregation and afford equal opportunity. A. 32a.

After extensive litigation, the district court concluded 
that the school district had indeed violated petitioners’ 
constitutional rights by various racially discriminatory 
practices, including deliberate segregation of black from 
white pupils in certain schools, and operation of a num­
ber of schools attended by Negro or Hispano1 pupils where 
there was a serious and systematic denial of a chance for 
an equal education to pupils of these minority groups.

The district court first entered a preliminary injunc­
tion requiring the board to implement three resolutions it 
passed and rescinded prior to the lawsuit which were in­
tended to begin desegregation of certain black schools in 
northeast Denver and to stabilize others in danger of be­

x¥ e  adopt the term “Hispano” as it is customary in the school 
district and used throughout the record. A Colorado Department 
of Education publication explains the usage in this m anner:

“And as for a name for the people of this Latin heritage to go 
by, it has not yet been agreed upon. The term ‘Hispano’ is 
popular in their intellectual circles today. The late Jack Guinn, 
a staff writer for the Denver Post, quoted Dr. Daniel T. Valdes, 
historian and professor of sociology in Denver’s Metropolitan 
State College, on the subject:

‘Hispano is a cultural term accurately applied to people of 
and from Spain, Mexico and Cuba, and any other country 
with a Spanish heritage. I t  avoids the confusion of hy­
phenated words, such as Spanish-Ameriean and Mexican- 
American, which are sometimes resented.’ ”

C olorado D epartm ent  of E ducation , H um an  R elations in  
Colorado, a H istorical R ecord, 203 (1968).

Similarly, Caucasians or whites are often referred to in the record 
as “Anglos.”



6

coming segregated. The preliminary injunction took ef­
fect in September 1969, after the order was twice vacated 
by the Tenth Circuit and ultimately reinstated by Mr. 
Justice Brennan as Acting Circuit Justice. Keyes v. School 
District No. One, 396 U.S. 1215 (1969).

In May 1970, the district court entered a final decree 
requiring a variety of remedies to redress the constitu­
tional violations. The opinion on the merits reaffirmed 
the earlier findings of certain deliberate segregation prac­
tices and policies, but held that plaintiffs had failed to 
prove segregationist purpose and effect with respect to 
other schools not dealt with in the preliminary injunction 
hearing. The court also found that defendant board had 
failed to provide equal educational opportunity to students 
at a number of predominantly Negro and Hispano schools 
and that this denied equal protection. The trial court for­
mulated a varied remedial plan, including (a) making per­
manent the temporary injunction, (b) desegregating 17 
minority schools by such techniques as redistricting, trans­
portation, specialty schools, and free transfer programs, 
and (c) ordering various “compensatory education” pro­
grams to improve the quality of education offered to mi­
nority students.

On appeal by the school board the Tenth Circuit affirmed 
in part and reversed in part. It affirmed the relief orig­
inally granted in the temporary injunction, and some ad­
ditional measures relating to the northeast part of the 
City, upholding the trial court’s findings that the school 
board engaged in an unconstitutional policy of deliberate 
racial segregation with respect to certain schools. How­
ever, the appeals court reversed the finding that there was 
a denial of equal protection by unequal treatment of mi­
norities in predominantly Negro and Hispano schools, and 
set aside the relief requiring desegregation and educational



7

improvement programs for minority students not covered 
by the board’s three 1969 desegregation resolutions en­
forced by the preliminary injunction. The court of appeals 
also rejected plaintiffs’ appeal seeking the desegregation 
of nine other minority schools not covered by the district 
court’s order.

II. The Denver School District.

During the 1968-69 school term, School District No. 1, 
which serves Denver, operated 119 schools with 96,5802 
pupils.8 The principal minority groups are Negroes (14%) 
and Hispanos (20%); a more detailed breakdown of the 
attendance pattern appears below.4 The system employed

2 There were 92 elementary schools, 15 junior high schools, 2 
junior-senior high schools, and 7 senior high schools for a total of 
116 regular schools. In addition, the board operated an Opportu­
nity  School, a Metropolitan Youth Education Center, and an A ir­
craft Training Facility. See DX-HK, p. 26, A. 2158a.

3 References herein to those portions of the transcript of the 
various proceedings below, which are not reproduced in the Ap­
pendix will be made as follows:

—the hearing on the preliminary injunction, held Ju ly  16, 18, 
21 and 22, 1969, will be cited as “P.H. Tr.” ;

—the hearing on the merits, held during February, 1970, will be 
cited as “Tr.”;

—the hearing on relief held in May, 1970, will be cited as “R.H. 
T r.”

Exhibits introduced by petitioners, plaintiffs below, will be cited 
as “P X ” ; defendants’ exhibits will be cited as “D X,”

4 Source: PX  242, 243, 273, 274, 302, 303; A. 2050a; A. 2053a; 
A. 2072a; A. 2074a; A. 2078a; A. 2080a.

Anglo Negro Ilispano
Pupils No. % No. % No. % Total

Elementary 33,719 61.8 8,297 15.2 12,570 23.0 54,586
Jr. High 14,848 68.7 2,893 13.4 3,858 17.9 21,599
Sr. High 14,852 72.8 2,442 12.0 3,101 15.2 20,395

Total 63,419 65.7 13,632 14.1 19,529 20.2 96,580



8

4,443 classroom teachers, including 7% Negroes and 1.9% 
Hispanos.6 The city covers 98.4 square miles, including 
substantial areas annexed in the last thirty years.6 The 
school budget for 1968-69 was more than $91.5 million 
dollars.7 The district is governed by an elected board of 
seven members.

III. The Pattern o f Racial Segregation.

A. Pupils.

At the outset of this case Denver schools were character­
ized by an intense pattern of isolation of black pupils from 
white pupils and an intense concentration of black teachers 
in schools with black pupils. Nearly three-fifths of the 
Negro pupils attend schools which are less than 10% Anglo, 
and nearly 4/5ths were in schools less than 30% Anglo:8

5 Source: PX  244, 245, 275, 276, 304, 305; A. 2055a; A. 2057a; 
A. 2075a;A . 2076a; A. 2081a;A . 2082a.

Anglo Negro Hispano Other
Teachers No. % No. % No. % No. % Total

Elementary 2,012 88.8 193 8.5 39 1.7 21 .9 2,265
Jr. High 881 88.5 87 8.7 22 2.2 6 .6 996
Sr. High 1,103 93.3 44 3.7 21 1.8 14 1.2 1,182

Total 3,996 89.9 324 7.3 82 1.9 41 .9 4,443
6 The district grew from 58.8 sq. miles in 1940 to 98.4 sq. miles in 

1969. DX HK, pp. 20-21; A. 2158a.
7 DX HK, p. 19, A. 2158a.
8 The district judge adopted a rule of thumb that schools with 

more than 70% of a single minority group were “segregated.” 313 
F. Supp. at 77; 313 F. Supp. at 92.



9

N um ber  and P ercentage of P u pils  
1968-1969

A ll  S chools
Percentage 

of Anglo No. of Anglo Negro Hispano
Students Schools No. % No. % No. %
90-100% 31 28,096 44.3 379 2.8 845 9.3
80-89% 20 13,863 21.9 316 2.3 1,959 10.0
70-79% 15 7,609 12.0 595 4.4 1,921 9.8
60-69% 9 4,788 7.5 46 .3 2,413 12.4
50-59% 7 4,354 6.9 1,389 10.2 2,332 11.9
40-49% 4 1,163 1.8 140 1.0 1,340 6.9
30-39% 7 1,412 2.2 90 .7 2,232 11.4
20-29% 5 990 1.6 1,684 12.4 1,320 6.8
10-19% 8 870 1.4 1,346 9.9 3,372 17.3
1-9% 8 252 .4 4,785 35.1 1,441 7.4

less than 1% 4 22 0 2,862 21.0 354 1.8'

Total 118 63,419 100 13,632 100 19,529 100

Source: P X  242, 243, 273, 274, 302, 303; A. 2050a; A. 2053a; A.
2053a; A. 2072a; A. 2074a; A. 2078a; A. 2080a.

The pattern of pupil segregation existed at all levels. 
At the elementary level where 92 schools serve compar­
atively smaller neighborhoods than at the secondary level, 
the pattern was particularly intense. Two-thirds of the 
black elementary pupils attended ten schools,9 all of which 
had less than 10 percent Anglo pupils; indeed, one-third 
were in schools with less than 1% Anglo populations. 
More than four-fifths of the black elementary children at­

9 The ten schools with less than 10% Anglo students in 1968-69 
w ere: (less than 1%)-—Barrett, Columbine, Mitchell and W hittier 
(less than 10% )—Crofton, Gilpin, Harrington, Smith, Stedman and 
W yatt. Crofton, Gilpin and W yatt had Hispano majorities and sub­
stantial numbers of black pupils.



10

tended schools less than 20 percent Anglo. The table in 
note 9 shows the breakdown.10

Black junior high pupils were concentrated at Cole, 
Morey and Smiley. More than four-fifths of the black 
junior high pupils (2423 out of 2893 or 83.7%) attended 
these three schools with 4 percent of the Anglo population.

The remaining 470 black students were scattered among 
14 other junior high schools with 95.6% of the Anglos.

At the high school level blacks were concentrated in 
Manual Training High School and East High School which 
served 91% of all black high school pupils and 10% of 
Anglo pupils. Out of a total of 2,442 black high school 
pupils there were 1,200 (49.1%) at Manual, the only 
predominantly minority high school. Manual had 78 
Anglo and 300 Hispano pupils. Another 1,039 black pupils 
attended East High School (53.7% Anglo). The remain­
ing 203 black pupils were scattered in 7 predominantly 
Anglo high schools with 13,365 Anglos.

N um ber  and P ercentage op P upils  
1968-69

E lem enta ry  S chools
Percentage 

of Anglo No. of Anglo Negro Hispamo
Students Schools No. % No. % No. %
90-100% 22 13,614 40.4 242 2.9 401 3.2
80-89% 17 8,426 25.0 267 3.2 1,109 8.8
70-79% 11 4,164 12.3 404 4.9 894 7.1
60-69% 8 2,986 8.9 41 .5 1,490 11.9
50-59% 4 1,129 3.3 212 2.6 687 5.5
40-49% 3 711 2.1 76 .9 766 6.1
30-39% 7 1,412 4.2 90 1.1 2,232 17.S
20-29% 3 393 1.2 145 1.7 1,072 8.5
10-19% 7 734 2.2 1,257 15.2 2,713 21.6
1-9% 6 128 .4 2,701 32.6 852 6.8

less than 1% 4 22 .1 2,862 34.5 354 2.8
Total 92 33,719 100 8,297 100 12,570 100

Source: P X  242, 243; A. 2050a; A. 2053a.



11

B. Teachers.
Negro classroom teachers have been assigned in those 

schools where black pupils are concentrated. The District 
Court found that this concentration results from a delib­
erate school district policy of assigning black teachers 
to teach black children. 303 F. Supp at 284-285. In 1964, 
the Voorhees Committee, appointed by the Board to study 
the school system, reported this policy and urged its aban­
donment :

While precise statistics are not available, the Com­
mittee believes that almost all of Denver Negro teach­
ers were initially assigned to schools having a high 
proportion of Negro students. A few have been trans­
ferred to other schools. There is now at least one 
Negro teacher in each senior high school except for 
Manual which has eleven. Nine out of thirteen junior 
high schools have one or more Negro teachers, and 
Cole has thirty-three. One or two Negro teachers have 
been placed in each of seven elementary schools other 
than those which contain large numbers of Negro 
children.

Spanish surname teachers are fewer in number than 
Negro teachers and the housing pattern of people of 
Spanish-American background is more dispersed. How­
ever, it does appear that relatively few Spanish sur- 
named teachers have been assigned to areas where 
there are few or no residents with Spanish-American 
background.

As a result of its interviews the Committee is con­
vinced that race has been relevant in the assignment 
of teachers. It appears that the administration has 
been extremely reluctant to place Negro and Spanish- 
American teachers in predominantly white schools be­
cause of concern with a possible lack of acceptance on



12

the part of a white neighborhood and a realistic assess­
ment of the possible lack of support by some prin­
cipals and faculties.

# # #

Recommendations as to Teacher Assignment and 
Transfer

1. The Board of Education should establish and en­
force a policy that qualified teachers of minority 
background will be assigned throughout the system. 
A. 2015a-2016a.

Former Superintendent Oberholtzer confirmed that the 
racial policy was deliberate and he defended it on the 
ground that Negro teachers should be assigned to schools 
with concentrations of Negro pupils for whom they would 
have “immediate empathy” and for whom they would be 
“role-models”. A. 1352a. In 1964 there were about 15 
schools with Negro teachers, all located in the central part 
of the City. A. 1165a. By 1969-70, Negro teachers had 
been assigned to many more schools, but a disproportionate 
concentration remained in the schools with most of the 
black pupils.

In 1969-70 at the elementary level, with 193 Negro ele­
mentary teachers, 91 were concentrated in 9 schools, each 
of which had less than 10% Anglo pupils,11 and 121 (62%) 
were in schools with less than 20% Anglo pupils.12 At the 
junior high level, 60 of 87 black teachers, or 68%, were

11 Thus, 91 or 47 % of the black elementary teachers are assigned 
to Barrett, Columbine, Mitchell, W hittier, Gilpin, Harrington, 
Smith, Stedman and W yatt. The only school with less than 10% 
Anglo pupils which has no Negro teacher is Crofton, a predomi­
nantly Hispano school. See PX  244, 245, 275, 276, 304, 305; A. 
2055a; A. 2057a; A. 2075a; A. 2076a; A. 2081a; A. 2082a.

12 Ibid. See Ebert, Elmwood, Fairmount, Fairview, Garden Place, 
Greenlee and Hallett schools (each with 10-19% Anglo pupils) with 
a total of 30 black teachers.



13

assigned to the three schools—Cole, Morey and Smiley— 
serving four-fifths of the black junior high pupils. Among 
senior high school pupils 25 of the 44 black teachers are 
assigned to Manual Training High School, the only pre­
dominantly minority high school in the district. Adding 
the six black teachers at East High School to those at 
Manual, we find 31 of the 44 black teachers (70%) at the 
two high schools attended by nine-tenths of the black high 
school students. The district judge concluded that the 
“tendency to concentrate minority teachers in minority 
schools has helped to seal off these schools as permanent 
segregated schools.” 303 F. Supp. at 284-285.

IV. P upil Assignm ent Policies and Practices.

The largest portion of the record relates to the pupil 
assignment practices of' the Denver school authorities. The 
courts below made detailed findings on this subject. We 
undertake to summarize the major findings and evidence.

A. General policies and practices.

The district court found that the Denver school system 
had carried out a segregation policy for a ten year period 
prior to the filing of this lawsuit. Judge Doyle wrote:

We have seen that during the ten year period preced­
ing the passage of Resolutions 1520, 1524 and 1531, the 
Denver School Board has carried out a segregation 
policy. To maintain, encourage and continue segrega­
tion in the public schools in the face of the clear man­
dates of Brown v. Board of Education cannot be 
considered innocent. 303 F. Supp. 279.

Judge Doyle found that the “climactic and culminative 
act of the Board was the June 9 rescission of Resolutions 
1520, 1524 and 1531” and “there can be no gainsaying the



14

purpose and effect of the action as one designed to segre­
gate.” 303 F. Snpp. at 285.

The ten year period of undeviating and uniform conduct 
to concentrate the growing Negro population in separate 
schools in northeast Denver and to keep other schools white 
is detailed in the opinions below. See 303 F. Supp. at 284- 
286, 290-295; 313 F. Supp. at 64-69; 445 F.2d at 996-1002. 
Judge Doyle sums it up:

Between 1960 and 1969 the Board’s policies with re­
spect to these Northeast Denver schools show an un­
deviating purpose to isolate Negro students first in 
Barrett, and later in Stedman and Hallett while pre­
serving the Anglo character of schools such as Philips 
and Park Hill. The ultimate effect of the Board’s 
actions and policies in the face of a steady influx of 
Negro families into the area was to create and main­
tain segregated situations at Barrett, Stedman, and 
Hallett which ultimately led to a substantially segre­
gated situation at Smiley. 303 F. Supp. at 294-295.

During part of the period the board was carrying out 
its “undeviating purpose” to segregate Negro pupils, it 
claimed to operate under a color-blind neighborhood as­
signment policy. Indeed, the former Superintendent, Dr. 
Oberholtzer, thought that Colorado’s constitutional prohibi­
tion against racial classifications of school children actually 
prevented him from adopting any policy designed to fur­
ther integration or relieve the concentration of Negroes in 
certain schools. A. 1370a-1371a. At the same time that the 
school system was deliberately establishing segregated 
schools, the “view of the school administration [was] that 
it was precluded from taking action which would have an 
integrating effect”. 313 F. Supp. 65.

Community protests in 1962 by black and civil rights 
groups over a plan to build an all-black junior high school



15

in northeast Denver on the same site with Barrett led the 
board to form the Special Study Committee on Equality 
of Educational Opportunity in the Denver Public Schools 
(sometimes called the Voorhees Committee) which issued 
a report in 1964. PX 20; excerpts at A. 1997a-2020a. The 
1964 report criticized the hoard’s school boundary policies 
as perpetuating racial isolation, as well as the policy of 
concentrating minority faculties in minority schools. The 
committee concluded that segregated schools resulted in 
inequality in educational opportunity and recommended a 
policy of considering racial and ethnic factors in setting 
boundaries to minimize segregation and establish heter­
ogeneous schools. The school board adopted such a position 
—Policy 5100 (PX 1; A. 1989a)—and then did nothing to 
implement. the policy. 303 F. Supp. at 283. “Nothing of 
substance was accomplished”. 445 F.2d at 996. The 1966 
Berge Committee (PX 21) appointed by the board also 
suggested changes to lead to integration, but “Again, the 
recommendations were not effected”. 445 F.2d at 996.

In May 1968 the board by a 5-2 vote adopted the Noel 
Resolution (Res. 1490, PX 2, A. 1991a), proposed by Mrs. 
Rachel Noel, its only black member, directing the super­
intendent to prepare a “comprehensive plan for the inte­
gration of the Denver Public Schools,” for adoption no 
later than December 31, 1968. Superintendent Gilberts pre­
sented a plan in October 1968. DX-D; excerpts at A. 2128a. 
Eventually Dr. Gilberts proposed and the board adopted 
three resolutions relating to school segregation: Res. 1520 
(Jan. 30, 1969), PX 3, A. 42a; Res. 1524 (Mar. 20, 1969), 
PX 4, A. 49a; and Res. 1531 (Apr. 24, 1969), PX 5, A. 60a. 
The three resolutions constituted a modest and tentative 
step to deal with segregation. Resolution 1531 was aimed 
at 2 black schools in northeast Denver (Barrett and Sted- 
man) and two nearby Anglo schools (Park Hill and Phil­
ips). It desegregated Barrett by changing boundaries and 
transporting students to and from white schools. It left



16

Stedman with the same predominantly black percentage but 
reassigned about 120 blacks to white schools permitting the 
removal of 4 mobile classrooms from Stedman. The resolu­
tion also made boundary changes and used transportation 
to stabilize Philips and Park Hill as Anglo majority schools. 
The resolution also sought to integrate Hailett by promot­
ing voluntary exchanges with white schools, a program 
started by a group of white parents in January 1969.

Resolutions 1520 and 1524 proposed to desegregate Smiley 
Junior High by boundary changes, and sought to prevent 
East High School from becoming segregated by other boun­
dary changes. Finally, Resolution 1524 reassigned some 200 
pupils from the majority black Cole Junior High to other 
schools, reducing the number attending this school, which 
would nevertheless remain only 1% Anglo. Despite the 
modest objectives of this pilot desegregation program, 
Judge Doyle found that the passage of these resolutions 
“constituted the first acts of departure from the Board’s 
prior undeviating policy of refusing to take any positive 
action which would bring about integration of the Park 
Hill schools”. 313 F. Supp. at 66.

However, on June 9, 1969, the board, its membership 
changed by an election in which integration was the prin­
cipal campaign issue (A. 1087a), rescinded the three resolu­
tions. The rescission by a 4-3 vote, over the opposition of 
the superintendent (A. 241a) occurred as soon as the new 
board members took office. Judge Doyle, after analyzing 
the effect of rescission on each of the affected schools, con­
cluded that the only purpose of rescission was the perpetu­
ation of segregation:

This action was taken with little study and was not 
justified in terms of educational opportunity, educa­
tional quality or other legitimate factors. The only 
stated purpose for the rescission was that of keeping 
faith with the will of the majority of the electorate.



17

The effect of the rescission was to restore and per­
petuate the status quo as it existed in northeast Denver 
prior to the passage of Resolutions 1520,1524 and 1531. 
This status quo was one of segregation at Barrett, 
Hallett, Stedman and Smiley. 303 F. Supp. at 295.

Although the main focus of the resolutions was aimed at 
only eight minority schools (Barrett, Stedman, Hallett, 
Park Hill, Philips, Smiley, Cole and East) they neverthe­
less involved 37.6% of all black students in the school 
system. Smiley and Cole enrolled 68.9% of black junior 
high students. East had 42% of black high school pupils. 
A chart showing the effect of the implementation of re­
scission of the resolutions on the attendance pattern of 
these schools, plus the 23 other schools involved in receiv­
ing transferred students under the three resolutions, is 
attached to the Tenth Circuit’s opinion. See 445 F.2d at 
1008. We point out in footnote 13 below the relation of 
the schools found to be deliberately segregated to the 
system as a whole.18

13 The board was found guilty of intentional segregationist acts 
of one kind or another with respect to the schools listed below. (As 
to Cole and East the conclusion rests on the rescission of Resolutions 
1520 and 1524).

P u pils— 1968-1969
Anglo Negro Hispano Total

B arrett .............................. 1 410 12 423
Stedman ............................ 27 634 25 686
Hallett ............................. . 76 634 41 751
Park Hill .......................... 684 223 56 963
P h ilip s ................................ 307 203 45 555
Smiley Jr. High .............. 360 1112 74 1546
Cole Jr. High .................. 46 884 289 1219
E ast H ig h .......................... 1409 1039 175 2623

Subtotal elementary.. 1095 2104 179 3378
Subtotal Jr. High .... 406 1996 363 2765
Subtotal Sr. High .... 1409 1039 175 2623

Total .................. 2910 5139 717 8766
( continued )



18

B. The Manner in W hich School Authorities’ Decisions 
Have Determined the  Racial Composition of Schools.

The record indicates the variety of decisions by which 
school authorities control the racial composition of schools 
in Denver. This control over racial composition has been 
purposefully exercised, according to the findings below, 
even during periods when the board asserted it was color­
blind in such matters. The control appears in routine de­
cision-making at the administration level, and in major 
and minor decisions by the elected school board.

It should be noted that there has been substantial con­
tinuity in administrative control of the Denver system for 
many years. Dr, Oberholtzer served as Superintendent 
from 1947-1967. A. 1300. The present Superintendent How­
ard Johnson (1970 to date) served as Deputy Supt. during 
Oberholtzer’s tenure and remained in that position during 
Supt. Gilberts’ tenure (1967-1970). Mr. Johnson was re­
sponsible for teacher placement and attendance bound­
aries during the years involved in the lawsuit. A. 256a-257a,

The findings below relate to decisions about such things 
as (1 ) the location of new schools and additions to schools, 
(2) the size of schools, (3) the utilization of schools, (4) 
the drawing of school attendance boundaries, (5) the use 
of optional zones, (6) the use of transfer plans, (7) the

The total black sehool enrollment in 1968 was:
Elementary 8297 
Jr. High 2893
Sr. High 2442

Thus the above-mentioned schools included:
Elem entary— 25.36% of all black elem. pupils 
J r. High — 68.99% of all black Jr. High pupils
Sr. High — 42.55% of all black Sr. High pupils
Total — 37.69% of all black pupils

Source: P X  242, 243, 273, 274, 302, 303; A. 2050a; A. 2053a- A 
2072a; A. 2074a; A. 2078a; A. 2080a.



19

use of mobile classrooms, (8) the maintenance of trans­
portation programs, (9) the composition of school facul­
ties, (10) the differing educational programs offered at 
schools.

The record in this case shows that where race was an 
issue each type of decision was invariably made in Denver 
so that the result was racial segregation. For a decade 
before the suit was filed the court found they were made 
for the purpose of segregating. Yet the courts below found 
the system guilty of unlawful segregation practices only 
in those cases where the asserted justification for action 
was shown to be “a sham or subterfuge to foster segrega­
tion.” 445 F.2d at 1000. Wherever the board could show 
any “rational neutral criteria segregative intent will not 
be inferred.” Id. Indeed, the district court refused to 
find unlawful segregation in cases where it thought “the 
result is about the same as it would have been had the 
administration pursued discriminatory policies, since the 
Negroes, and to an extent the Hispanos as well, always 
seem to end up in isolation.” 313 F. Supp. at 73. But, 
even with this strict burden of proof, which petitioners 
protest as too onerous, the Denver system was found to 
have engaged in a decade-long segregation policy affect­
ing a substantial portion of the black community.

1. Assigning Faculty by Race.
As described at pp. 11-13 above, the school district

admitted to a long time practice of assigning minority 
teachers to schools with minority children. The District 
Judge found that this practice “helped to seal off these 
schools as permanent segregated schools.” 303 F. Supp. 
at 284-85. He also found that the reason for the practice 
was racial prejudice or more precisely that the reluctance 
to place minority teachers in white schools was because of



20

“concern over a possible lack of acceptance by the white 
community and because of a fear of lack of support by 
some faculties and principals.” 303 F. Supp. 284.

The findings of unlawful segregation at Barrett (52.6% 
Negro teachers) and Smiley Jr. High (23% Negro teachers) 
were expressly related to the faculty assignments by race. 
303 F. Supp. at 290, 294. Schools where black teachers were 
concentrated in heavily disproportionate numbers were 
invariably schools where black pupils were concentrated. 
See PX 318, A. 2083a; PX 258, A. 2059a; and DX-DG-, 
A. 2146a, showing percentage of Negro teachers 1964- 
1968 in elementary schools with faculties 20% or more 
Negro. The percentage of black teachers at Barrett, Hal- 
lett, Smiley and Cole was actually greater in 1967 and 
1968 than it was five years earlier when the board an­
nounced a policy of assigning minority teachers outside 
minority schools. A. 337a-38a.

The policy of assigning minority teachers to minority 
schools was in effect when Dr. Oberholtzer became super­
intendent in 1947 and continued in following years.14 * Dur­
ing the period when the board said it thought itself legally 
bound to be “color blind” in pupil assignments it never­
theless continued assigning black teachers to schools with 
black pupils. The board’s policy was that a teacher’s res­
idence should have nothing to do with the teacher’s school 
assignment, nor was it a reason for granting teacher 
transfers. A. 285a.

Negro principals were also assigned only to minority 
schools. The Voorhees Committee reported in 1964:

14 The first Negro teacher in Denver was hired at W hittier Ele­
mentary school in 1934. From 1934 to 1944 there were never more
than five Negro teachers in the system and all were assigned £o 
W hittier. By 1954 there were 43 Negro teachers in the system all 
assigned to minority schools. See PX  410, A. 2106a.



21

“At present, Denver’s two Negro principals two 
Spanish-American assistant principals, one Negro as­
sistant principal and one Negro teacher-assistant are 
assigned to schools in minority neighborhoods. (Two 
Negro coordinators and one Japanese-American as­
sistant principal are not so assigned.) The Committee 
sees no acceptable reason why administrators with 
minority background should continue to be assigned 
to schools where minority students predominate.” PX 
20, pp. D-17-18.

2. Size and Location of School Buildings; Additions to 
Buildings; Capacity Utilisation; Mobile Classrooms.

The racial composition of schools in the system was 
determined by interrelated decisions about such matters 
as the location of new schools, the construction of added 
space at existing schools by new permanent or mobile 
classrooms, and decisions to overcrowd15 or under-utilize 
existing school capacities. For example, the district court 
found that Barrett elementary school was built in a par­
ticular location “with conscious knowledge that it would 
be a segregated school.” 303 F. Supp. at 285. Barrett 
was built as a small school on a large site with its size 
designed to fit the number of black pupils in the area 
without providing any room, for pupils from an over­
crowded white school a few blocks away:

“At the time Barrett was built Stedman School, in 
a predominantly white area, and located a few blocks 
east of Barrett, was operating at approximately 20 
percent over capacity. Yet Barrett was built as a 16

16 Sometimes the decision would be made to use double sessions in 
a school to keep the children in their neighborhood. A. 1180a. Some­
times the school day was “extended” to increase capacity. A. 375a.



22

relatively small school and was not utilized to relieve 
the conditions at Stedman.” 303 F. Supp. at 285.

Manual Training High School was built in 1953 as the 
smallest high school in the city (it still is) to accommo­
date the predominantly Black and Hispano population in 
the central city area. A. 1404a. It was admittedly de­
signed to serve the minority community as Dr. Oberholtzer, 
then Superintendent, testified:

Q. Now, first of all, with respect to the building of 
new Manual, it’s true, is it not, Doctor, that Manual 
High School today is the smallest high school in the 
district? A. It is the smallest senior high school, yes.

Q. And it was at the time it was built, also, was 
it not? A. I believe it was, yes.

Q. Why was Manual built so small, Doctor! A. 
Are you talking about new Manual or old?

Q. New Manual. A. The new Manual was built in 
the same general location as the old Manual and sub­
stantially the same attendance area. That was the 
reason.

Q. It was built to serve a particular community? A. 
The community in that area, yes.

Q. What was the composition of that community, 
Doctor? A. Negro and Anglo, largely; some Hispano.

Q. Well, you recall, do you not, Doctor, that as early 
as, I believe it’s 1950-1951, that Manual was already a 
predominantly minority school, do you not, about 40 
percent black, 35 percent Hispano, 25 percent Anglo? 
A. Somewhere in that neighborhood.

Q. And I assume that that neighborhood that new 
Manual was to serve wasn’t getting any whiter between, 
say, 1951 and ’53 when new Manual was opened? A. 
No.



23

Q. It was becoming blacker, was it not1? A. There 
was some tendency, yes, to that.

Q. Well, it’s true, isn’t it, that when the new Manual 
opened, Doctor, it only had 77 Anglos in it?

Mr. Brega: Your Honor, I object to this line of 
testimony. In 1953—that was prior to Brown and 
at that time the law in the country was separate but 
equal. That was all right. If that were the case in 
Denver, that would not have been unconstitutional at 
that time. I think it’s moot and not relevant to the 
the issues.

The Court: Well, I  think that we have been per­
mitting inquiry into the history of this for various 
purposes. So we will not draw the line at this point.

The Witness: Would you repeat the question, 
please?

Mr. Greiner: Would the reporter read it, please?
(Question read by the reporter.)

A. I do not recall that figure.
(A. 1404a-1405a.)

In 1949, 76% of Denver’s Negro high school students 
(278 of 363) attended old Manual High School; by 1956, 
84% of them (541 of 641) attended new Manual. A. 499a- 
500a; PX 401. A school board publication makes it clear 
that new Manual was designed to be a predominantly mi­
nority school to replace the old school of the same name 
PX 356, A. 2086a, “The New Manual” :

“S ome B asic P boblems to B e P aced 
I n  P lanning  a N ew Manual

There was little doubt when it became known that 
Manual would be on the “must” list of the new build­
ings that Manual could not be just a high school cut



24

from a general pattern. Manual is different. The col­
lege preparatory function of a high school is not the 
first consideration in Manual although it has not been 
neglected for those boys and girls who do go to college. 
For roughly three-fourths of the student body college 
is virtually an impossibility.

The usual problems faced by youth are sharpened for 
the many Manual boys and girls who are members of 
minority groups. Since 1926 the Anglo population at 
Manual has dropped from over eighty per cent to about 
forty-one per cent; the Negro population has gone 
from ten to twenty-seven per cent; the Spanish-Ameri­
can figure has risen from less than one per cent to 
twenty-three and one-half per cent; and the Oriental 
has gone from seven-tenths of one per cent to eight 
per cent. These boys and girls have needs which the 
school must meet in order to prepare them for effec­
tive participation in the community. The chart follow­
ing shows the changing racial distribution in Manual.”

The district court’s decision about plaintiffs’ complaint 
that Manual was “earmarked for minority occupants” was 
that “we have to be mindful of the evidence that it was 
opened in 1953 at a time prior to Brown v. Board of Edu­
cation . . . , and we are told that this location had the 
consent of the people in the neighborhood.” 313 F. Supp. 
at 69-70. The court said: “At that time there was much less 
concern about minority concentration.” 313 F. Supp. at 70.

Control of racial composition by decisions as to capacity 
utilization is also illustrated by Manual which was operated 
under capacity from the time of its opening in 1953, al­
though nearby East High School with only 2% Negro 
enrollment was “filled to capacity.” 313 F. Supp. at 70.

School capacities were controlled by adding mobile class­
rooms to expand some crowded buildings. This became a



25

general practice in northeast Denver where there was a 
large migration of blacks in the 1960’s and 28 mobile class­
rooms were erected to accommodate the black pupils.16 
Mobile classrooms were used almost exclusively at black 
schools in the northeast Denver area. A. 106a. Capacities 
at Stedman and Smith were systematically controlled by 
the periodic addition of mobile units to contain the blacks 
in the area.

Mobile units and new classrooms were added to Hallett 
beginning in 1965 to “solidify segregation.” 17 Mobile units 
were added to Smith with similar results.18

3. Transportation Policies.
Denver has used its transportation system as an alternate 

means of dealing with the lack or shortage of facilities in 
particular neighborhoods, and this has necessarily had an 
impact on the racial composition of schools. The established 
policy was to make free transportation available to ele­
mentary pupils who lived more than a mile from their 
assigned schools. A. 1188a. In 1968 the school system sup­

16 “The building of 28 mobile units in the Park Hill area in 1964 
(at the time there were only 29 such units in all of Denver) resulted 
in a further concentration of Negro enrollment in Park Hill schools. 
The retention of these units on a more or less permanent basis 
tended to continue this concentration and segregation.” 303 P. 
Supp. at 285. See PX  101; PX  73, 74.

17 “In  1965 four mobile units were constructed at Hallett. Shortly 
thereafter, the Board also approved the construction of additional 
classrooms. A t this time Hallett" was approximately 75 percent 
Negro. The effect of the mobile units and additional classrooms was 
to solidify segregation at Hallett increasing its capacity to absorb 
the additional influx of Negro population into the area.” 303 F. 
Supp. 293.

18 When the school became overcrowded Smith parents were 
offered a choice between adding mobile units a t Smith or being 
bussed possibly back to black core city schools. A. 691a-694a, 696a- 
697a.



26

plied transportation to 1184 Negro and Hispano children 
(6% of minority elementary children) and 4,369 Anglo 
children (about 13% of Anglo elementary children). A. 
775a. In 1969-70 the Superintendent said about 12,000 
pupils were bussed and that the board’s “pay-as-you-go” 
policy for financing new construction necessitated much of 
the busing in newly annexed areas. A. 1755a.

Basically in southeast and southwest Denver, Anglo 
pupils in newly annexed areas of the city were bussed to 
the nearest Anglo school which had available capacity.19 
A.. 1183a-1184a. Before the lawsuit, no Anglo students 
were bussed to any predominantly minority schools. 
A. 1203a. The school administration policy was not to bus 
pupils into schools classified as the poverty area, target 
area or culturally deprived area under federal programs. 
A. 1205a-1206a.

Plaintiffs’ Exhibits 390-A and 390-B are large maps (de­
scribed in testimony at A. 767a-775a) which show that the 
school system bussed numbers of Anglo students past 
under-utilized minority schools.

Anglo pupils were bussed as far as ten miles before the 
lawsuit, some of the longest distances being from South­
west Denver to Asbury, University Park, Steele and Cory. 
A. 375a. Exhibit 390 shows that in many cases students 
who were being transported were not being taken to the 
nearest school which had capacity to absorb them. One 
of the more striking examples of this was the transporta­
tion in 1967 and 1968 of junior high school children from 
the Montbello area to Lake Junior High School. These 
children who live in the northeasternmost corner of the 
city were being transported past Cole Junior High School,

19 The District did not employ mobile units to increase the ca­
pacity of schools which were even closer to the annexed areas. 
PX  101.



27

which was under-utilized, to the western edge of the city. 
PX 426. The Montbello children were predominantly 
Anglo, and Cole’s membership was predominantly Negro. 
In this case a neighborhood or distance principle was not 
enforced.

Judge Doyle noted that the three 1969 resolutions con­
templated the use of transportation facilities to promote 
desegregation. In ordering that the three resolutions be 
implemented he noted that “the board has had for many 
years and now has a policy of transporting students who 
live a certain distance from their schools,” and thus trans­
portation was “probably necessary in order to carry out 
this decree, but nothing in this order shall be construed 
to require the Board to use such transportation if it can 
be dispensed with.” 303 F. Supp. at 296.

The court’s final decree requiring integration of various 
schools contemplated that detailed plans about such mat­
ters as transportation requirements would be submitted 
to the court at a later date. In fact, the board did submit 
various transportation plans in considerable detail at a 
hearing which occurred in May 1971 while the case was 
pending on appeal.20

20 The transcript of this hearing commencing May 14, 1971 was 
not before the court of appeals because it took place while the 
appeal was under advisement. However the transcript has been 
lodged with the Clerk of this Court so that the Court may have 
access to all available materials about the case which may be rele­
vant. Judge Doyle concluded that the board’s Plan C as modified 
by the suggestions of plaintiffs’ counsel should be adopted. May 
1971 Tr. p. 445. The original Plan C would have required trans­
portation for an estimated 3,919 pupils to desegregate the seven 
minority elementary schools in the first year of the plan. The esti­
mated cost was $823.80 per day or about 21 cents per child per 
day. (See Report, Alternative Plans for Implementation of United 
States District Court Orders Stated in the P inal Decree of June 8, 
1970, Denver Public Schools, March 17, 1971, p. 51.)



28

4. Establishing and Changing School Attendance 
A rea s .

The general practice in Denver was to hold public hear­
ings and have formal board action only on secondary at­
tendance boundaries and to permit the administrative staff 
to fix elementary school attendance areas or sub-districts 
without public hearings or detailed board attention. A. 117a; 
A. 901a. An important but unexplained exception to this 
general practice was the fact that various elementary bound­
aries in northeast Denver involved in the court’s finding 
of deliberate segregation during the 1960’s were set by 
the school board. A. 173a; 303 F. Supp. at 291. One con­
sequence of the staff making elementary school zone changes 
is that many such changes did not appear in minutes of 
the school board, and for the years prior to 1960 only a 
few maps were still available at the time of the trial. 
A. 842a. Thus the parties engaged in attempting to recon­
struct boundary maps for years prior to about 1960, ex­
cept for the 1956-57 boundary changes. A. 842a-857a; 
481a-484a.

The district court’s findings of deliberate fixing of bound­
ary lines for the purpose of segregating Negroes from 
whites related to (1) the original boundaries set when 
Barrett was opened in 1959 (303 F. Supp. at 290; PX 40, 
41; A. 2021a; A. 2022a) ; (2) 1962 and 1964 boundary deci­
sions affecting Stedman (303 F. Supp. at 291; PX 50, 53, 
70, 71; A. 2024a; A. 2026a; A. 2028a; A. 2030a); (3) various 
actions during the 1960’s maintaining Park Hill and Philips 
as Anglo schools (303 F. Supp. at 292); (4) 1962 boundary

By the 1970-71 school year the system was transporting 12,500 
pupils daily on 134 school buses, including busing of handicapped 
pupils, pupils in newly annexed areas, pupils more than one mile 
from elementary schools or more than two miles from junior high 
schools, pupils in crowded areas, pupils under the court orders of 
1969 and 1970 and pupils on instructional excursions {Id. at 6-7).



29

decisions relating to Hallett-Philips and 1964 decisions 
relating to Stedman-Hallett and Hallett-PMlips (303 F. 
Supp. 293); (5) rescission of the 1969 proposed boundary 
changes for Smiley and East (303 F. Supp. 294).

Plaintiffs offered evidence trying to prove discrimination 
in the fixing of various other boundaries which is sum­
marized in the district court opinion at the pages indicated 
hereinafter: (1) original boundaries between New Manual 
and East High schools 1953, and changes in 1956 (313 F. 
Supp. at 69-70, 75); (2) Cole and Smiley Jr. High schools 
boundary change in 1956 (similar to Manual-East change 
at same time; 313 F. Supp. 70-71, 75); (3) Cole, Morey 
and Byers junior high school changes in 1962 (313 F. Supp. 
71-72, 76); (4) Boulevard school boundary change 1961 
(313 F. Supp. at 72, 76) and Columbine zone changes 
1962 (313 F. Supp. at 72-73, 75-76). We summarize the 
evidence as to Manual, Cole and Columbine.

Manual. The eastern boundary of Manual in 1953 was 
set one-half block from the building. PX 203; Map of 
Manual Boundaries 1955; A. 2044a. It coincided with the 
easternmost Negro residence. As the Negroes moved east­
ward, the Manual boundaries were changed with them to 
embrace the Negroes as part of the mandatory Manual 
area where theretofore the area had been in an optional 
Manual-East zone. PX 204, Map of 1956 Manual Bound­
aries, A. 2046a. There was widespread concern in the 
Negro community about the segregationist effects of the 
proposed 1956 Manual changes, and Mr. Lorenzo Traylor, 
a black official of the Urban League, organized meetings 
with schools officials and community groups to protest the 
changes but had no success. His testimony about the 
Manual changes and the Cole boundary changes in 1956 
shows very plainly that the boundary changes followed the 
black population migration eastward, that the school of­



30

ficials were made aware of this and that they declined to 
adopt alternative proposals that wonld have worked to 
integrate Manual and Cole. A. 580a-599a. In summary :

1. When the new Manual was built, its eastern 
boundary was only one-half block from the school, 
approximating the location of the Negro population.

2. The eastern boundary of Manual was moved east­
ward to York Street in 1956 commensurate with the 
Negro population movement.

3. This 1956 change occurred after widespread com­
munity concern that it would be a segregatory change.

4. During the relevant period Manual was always 
under-utilized and no rational justification for this 
boundary change on the basis of capacity utilization 
exists. PX 210, A. 2048a.

Cole. In 1952 Cole was under capacity and predominantly 
black and Hispano while Smiley to the east was over­
crowded and still an Anglo school. PX 215, 215A. Rather 
than shift the boundaries to relieve overcrowding at Smiley 
by adding whites to Cole, the board built additional class­
rooms at Smiley. 313 F. Supp. at 71. In 1956 as the black 
community moved eastward the Cole boundary was shifted 
to follow them, the boundary change being the same as 
that described previously for Manual in 1956. Id.; PX 211, 
211A, 211B. Again in 1958 another addition was built at 
Smiley notwithstanding that Cole still had empty spaces. 
Id.; PX 215, 215A. These changes were opposed by the 
black community, and Mr. Traylor of the Urban League 
offered the board boundary proposals which would have 
the effect of integrating the schools to no avail. A. 580a- 
599a. PX 333, A. 2118a. This was during the period when 
the board asserted that it was not lawful for it to consider



31

race for the purpose of integrating students. A. 1370a- 
1371a.

Columbine. The hoard established a series of optional 
zones around Columbine in 1951 which increased the Negro 
enrollment because it set up options which “were appar­
ently employed by Anglo students as a means of escaping 
from Columbine to the almost totally Anglo Harrington 
and Stedman.” 313 F. Supp. at 72-73; PX 406, 407. Al­
though the asserted purpose was to relieve overcrowding 
at Columbine the court found that actually “the effect of 
the administration’s action was to slightly decrease over­
crowding at Columbine while creating an overcrowded 
situation at Harrington and Stedman.” 313 F. Supp. at 72.

5. Optional Zones and Transfer Devices.
The board has employed a variety of devices which have 

enabled parents to choose schools so as to achieve racial 
separation. Optional zones located in the border areas of 
mixed racial population between white and black schools 
functioned as an effective device to accommodate segrega­
tionist sentiment among the public. The two optional 
zones between East and Manual defined the racially mixed 
neighborhoods, and as soon as a neighborhood became all 
black it was shifted from an optional zone to a mandatory 
part of the Manual zone—-Traylor testimony at A. 580a- 
592a; PX 203, 204; A 2044a; A. 2046a.

The use of optional areas for whites to escape black 
students at Columbine is discussed in the preceding section. 
The Cole-Smiley optional zone was identical to the Manual- 
East optional area. A. 502a-503a; PX 211, 211A, 212, 
212A.

The Voorhees Committee Report denounced the board’s 
use of optional areas and recommended that the board im­



32

mediately stop the practice “at the earliest possible date.” 
PX 20, pages A-12 to A-13; A. 2013a. The report stated 
that the “use of optional areas forms no part in rational 
administration of the system for fixing boundaries which 
the Committee has recommended” Id. After this report 
the board eliminated the last optional zones in 1964 (A. 
1347a), but in September 1964 instituted a Limited Open 
Enrollment (LOE) program which gave pupils freedom 
of choice to transfer out of the schools in their attendance 
zone to certain schools which were designated as open to 
LOE transfers. A. 299a; 304a.

Under LOE a student could transfer to any school where 
openings were listed as available but the student had to 
furnish his own transportation. There were in 1968 only 
365 LOE spaces open at the elementary level. A. 541a; 
PX 87, 89, 90; A. 2032a; A. 2034a; A. 2036a. No priority 
was given to transfers that would promote integration nor 
was there any prohibition against transfers that would 
tend to promote segregation. Plaintiffs’ evidence showed 
that the LOE program involved only about 267 elementary 
students out of 50,000 (A. 538a). It had negligible effect 
toward integration—a maximum of 29 pupils—while an 
estimated 58 to 77 white pupils left black schools to at­
tend white schools. A. 538a; PX 99, 100. Plaintiffs showed 
that 10 Anglo schools which were under-capacity and re­
ceiving Anglo pupils by bus were not on the list report­
ing LOE openings. A. 539a-540a; PX 89, A. 2034a. Seven 
predominantly minority schools with an overall Anglo per­
centage of only 12 percent contained over 55 percent of 
the available LOE spaces (203 of the 365 elementary open­
ings in the district). A. 541a; PX 90, A. 2036a. Although 
objective data shows that the white schools had space avail­
able, the principals were not reporting space as open for 
LOE purposes. PX 89, A. 2034a; PX 87, A. 2032a.



33

The Voluntary Open Enrollment (VOE) program adopted 
in the fall of 1968 and implemented in January 1969 was 
offered as an integration program. Shortly after the Board 
announced the program a group of white parents formed 
the idea of targeting Hallett school as a black school which 
might be integrated if a sufficient number of whites could 
be organized to volunteer to transfer in and an equiva­
lent number of blacks could be organized to transfer out. 
A. 665a-683a. Their initial efforts were rebuffed by Deputy 
Supt. (now Supt.) Howard Johnson, who stated they had 
no duty to promote the VOE program but merely to make 
it available. A. 675a. Later in Resolution 1531 (April 
1969) the board endorsed the idea of making Hallett a 
“demonstration integrated school as of September 1969, 
by use of voluntary transfer”. A. 68a. After an intensive 
summer recruitment program (A. 687a-691a), VOE helped 
to change Hallett from 84% black in 1968 (Anglo pupils— 
76, black 634, Hispano 41) to 58.4% black in 1969-70 (An­
glo pupils 290, black—444, Hispano—22). About 1500 
pupils were involved in the VOE program in the entire 
city. A. 1769a. At the relief hearing in May 19701 the board 
offered its VOE program as the sole remedy to achieve 
integration. Judge Doyle, while permitting the VOE pro­
gram to continue, refused to permit the Board to limit 
its integration program to this one technique. 6

6 . Curriculum, Level of Instruction and the Atmosphere 
of Segregated Schools.

Manual Training High School was planned prior to 1953 
to offer a curriculum designed for minority and other low 
income students. See supra pp. 23-24. Manual was planned 
as a lower caste school to meet the “special needs” of lower 
income and minority pupils about whom it was noted that 
“Fewer pupils got to college,” “Fewer take college pre­
paratory subjects,” “More go to work immediately” and



34

“More go into unskilled and semiskilled labor.” PX 356; 
A. 2086a. Such prophecies of course have a, way of becom­
ing self-fulfilling, and people who want to avoid the mold 
will try to avoid the school. Robert O’Reilly, one of plain­
tiffs’ expert witnesses called this sort of thing “program­
ming students into basically lower occupations than the 
whites are programmed into.” A. 1964a.21

The community perception of Manual and its feeder 
school Cole Junior High was negative. The feeling in the 
black community was that Manual was a substandard school 
and that the quality schools were in other parts of the City 
according to George Brown, a black State legislator and 
former local newsman covering education subjects. A. 865a. 
The dropout rate was high and “even the name had its nega­
tive connotation” he said. A. 865a. Manual’s black prin­
cipal was aware of the community resentment toward the 
school and of the reluctance of employers to hire Manual 
graduates. A. 1847a. He attempted many program inno­
vations, but acknowledged that Manual students scored in 
the 34th percentile in 1965 and had slipped to the 28th per­
centile by 1968 on standard achievement tests. A. 1874a.

21 The Court: Well, they’re doing this at both Manual and 
Cole. They’re making more or less specialized schools out of 
them and programs they have never done before. This is in 
self-defense.

The W itness: Well, this kind of thing really goes back over 
a hundred years. In a situation like this, why, where mostly 
black and Hispano students are getting that kind of program 
and whites are getting another kind of program—and you have 
a system where grouping occurs into special programs from the 
elementary on up through the secondary level, it finally ends 
up in vocational training. And amounts to, in my opinion, 
programming students into basically lower occupations than 
the whites are programmed into. The whites are programmed 
into another environment. And, you know, I  don’t  know 
whether this is planned this way, that is my feeling.

The Court: This is a danger, you say?
The W itness: I think it’s a very clear danger.



35

The principal of Cole Junior High School took office in 
January 1969 and found what he described as “turmoil, 
confusion and conflict”. A. 1875a. The school had severe 
discipline problems and had three principals in three years. 
A. 1891a.

Judge Doyle, after hearing days of testimony, said of 
Manual and Cole:

“Those two schools are sort of symbols, it seems to me, 
of segregation. I mean, they seem to, for some reason 
to—to have that character.” A. 1687a.

Professor Dan Dodson described the problem of such 
schools in these terms:

“ . . . But I think that the point of takeoff would be 
that the school itself is reflective of the broader society 
or the dominant power arrangement of the commu­
nity, and that when it comes to dealing with the children 
of minority, it has a problem of adjusting its programs 
that are designed for a majority to serve minority 
children for very definite reasons. Usually it is a 
teacher who is less experienced; usually it is a school 
that is older and so on. Usually it is a school by the 
time it becomes segregated that is looked upon by the 
whole community as being inferior. And when it is 
looked upon as being inferior this does make it indeed 
so, because you can’t keep up the morale of the teachers 
nor the children, nor you can’t keep up the expecta­
tions for performance and achievement in the schools. 
Teachers feel less privileged when they are sent there 
to teach and escape as quickly as they can. More than 
this, they come to look at these children as being less 
worthy and of whom less is expected. Consequently 
there has developed what’s called the self-fulfilling 
prophesies; that because nothing is expected, no stan­
dards are held. And consequently the person comes



36

to fulfill the prophesy that you had of him in the be­
ginning. Some evidence of this is that the differences 
are not this great between children when they first 
come to school between the majority and the minority, 
and that with each succeeding year these children of 
the minority tend to fall further behind. The alterna­
tive that I would pose to the position that the trauma 
resides—or the limitation reside in the pre-school ex­
perience, is that all this combines to teach these chil­
dren of the minority that they are powerless people 
and consequently as all people tend to do when they 
feel powerless, they resign in apathy and that the 
limitations to learning is not in their cognitive appa­
ratus nor abilities nor in the lack of pre-school stimu­
lation, but resides instead in the apathy that stems 
from a pervasive powerlessness and impotence in the 
community.

A. 1473a-1474a.

Judge Doyle made findings about the interrelationship of 
these intangible factors which tend to label a school and 
reinforce the image of a school as a segregated institution:

At this point, the Negro community does not con­
sider the segregated school as a legitimate institution 
for social and economic advancement. Since the stu­
dents do not feel that the school is an effective aid in 
achieving their goal—acceptance and integration into 
the mainstream of American life—they are not moti­
vated to learn. Furthermore, since the parents of 
these Negro students have similar feelings with respect 
to the segregated school, they do not attempt to moti­
vate their children to learn. Teachers assigned to 
these schools are generally dissatisfied and try to es­
cape as soon as possible. Furthermore, teachers expect 
low achievement from students at segregated schools,



37

and thus do little to stimulate higher performance. 
313 F. Supp. at 81.

Y. Denver’s Segregated M inority Schools Afford Their 
M inority Students an Educational O pportunity In­
ferior to That Afforded by Predom inately Anglo 
Schools in the District.

The evidence below demonstrated convincingly and the 
trial court found, as a matter of fact, that certain of Den­
ver’s segregated schools afforded an unequal and inferior 
educational opportunity to their minority students.

Much of the evidence covered September, 1963 through 
May, 1969, just prior to the lawsuit. However, there is 
ample basis for concluding that this inequality of op­
portunity has existed for so long as there have been 
segregated schools in Denver.

All of Denver’s segregated22 minority schools shared cer­

22 Plaintiffs’ evidence and exhibits concentrated on comparing 
groups of Minority and Anglo schools selected on the basis of prob­
ability anlaysis (A. 701a-707a). Essentially the schools which had 
the greatest deviation from the district’s overall ethnic compositions 
were selected. The schools compared were 21 Anglo elementary 
schools with 20 minority elementary schools, 4 Anglo Junior Highs 
with 4 Minority Junior Highs, and 3 Anglo Senior Highs with 3 
Minority Senior Highs. (Two of the “minority” senior highs 
actually had slight Anglo majorities of 53-54 percent.)

All of these minority schools reflected the same deficiencies in 
teacher experience, teacher turnover, age of buildings, drop-out 
rates and low achievement.

In  its opinion of March 21, 1970, in determining whether a school 
was “segregated” the tria l court adopted a standard whereby a 
school had to have a Negro or Hispano enrollment of approximately 
70% before it would be considered “segregated.” Out of the 20 
elementary schools identified by plainitffs, twelve met the court’s 
standard. In  addition, two additional elementary schools, Smedley 
and Elyria, based upon 1969 data, met the court’s standard and 
were added to the court’s list of “segregated” schools in its May 
21, 1970, opinion. These 14 schools will be referred to herein as the 
“court-designated” elementary schools.

In  discussing the statistics regarding the inferior schools, for the 
sake of consistence as to the referenced schools, we will generally



38

tain common characteristics reflecting their inferiority. 
These schools, when compared to predominately Anglo 
schools possessed none of the attributes necessary to learn­
ing or to the development of self respect and confidence in 
the minority children.

These deficiencies and disparities were tangible and in­
tangible, objective and subjective, and included educational 
inputs as well as educational results. Much of the ob­
jective, tangible evidence of this inferiority came from 
the school district’s own records and reports. In addi­
tion, several of this country’s leading experts23 testified 
as to the intangible, subjective characteristics of the en­
vironment of these segregated schools which tend to im­
pede and destroy the academic progress as well as the 
self development of the minority children.

The record demonstrates that all of these characteristics 
inhere in the segregated school, regardless of how it be­
came segregated, In combination they create a school and

be referring to a group of 22 elementary schools: Boulevard, 
Bryant-W ebster, Columbine, Crofton, Ebert, Elmwood, Elyria, 
Fairmont, Fairview, Garden Place, Gilpin, Greenlee, Hallett, H ar­
rington, Mitchell, Smedley, Smith, Stedman, Swansea, W hittier, 
W yatt and Wyman. At the junior high school level: Morey, 
Baker, Cole and Smiley; at the senior high school level: East, 
West and Manual.

Of the four junior high schools identified by plaintiffs, Morey did 
not meet the standard ; of the three senior high schools, only Manual 
was found by the tria l court to be segregated.

23 Dr. Dan W. Dodson, Professor of Education, New York Uni­
versity; Dr. James Coleman, Professor of Social Relations, Johns 
Hopkins University, Director of the survey for the United States 
Commissioner of Education on equality of educational opportunity, 
which was published as “Equality of Educational Opportunity,” 
P X  500; Dr. Neil Sullivan, Secretary, Massachusetts State Board of 
Education, former Superintendent of Schools, Berkeley, California; 
Dr. Robert O’Reilly, Chief, Bureau of School and Cultural Re­
search, New York State Department of Education, author of “Racial 
and Social Class Isolation in the Public School,” PX  508.



39

an educational environment which is inherently unequal 
and which seems programmed to produce the failure which 
results.

A. The Segregated Schools Have Homogeneous, Low 
Social Class Composition Which Deprive the 
Minority Children of an Important Element of 
Learning, a Heterogeneous Peer Group.

One of the most important educational attributes of a 
school is the peer group with whom the student attends 
school. The segregated school brings together children, 
most of whom are poor, who come from so-called deprived 
home environments, and whose parents have a relatively 
low level of education and employment.24 *

National studies26 have demonstrated that this social 
class composition of the school is a more important source 
of learning than the teachers themselves.26 Children learn 
as much or more from their peers than from the academic 
curriculum of the Schools. The school with a heterogeneous 
social class composition, particularly one which is pre­
dominately middle class, offers the most advantageous 
learning environment to all of its pupils, both minority 
and majority.27 Dr. Coleman made it clear that his re­
search was concerned with the impact of other children 
upon a child’s performance rather than the influence of 
that child’s own background upon his performance. A. 
1536a.

When this homogeneous low social class is combined with 
racially identifiable, isolated schools, the education oppor­

24 P X  20, pp. 2-8, A. 2Q00a-2004a; PX  20, Map No. 5; PX  20,
pp. D1-D5, A. 2008a-2011a; PX  83.

26 PX  500; PX  27.
26 Coleman, A. 1531a-1535a.

- 27 Coleman, A. 1535a; RH Tr. 74-75.



40

tunity afforded by the school is destined to be inferior. 
The district court, in discussing this evidence, stated as 
follows:

Since Negro and Hispano children from low socio­
economic families are typically not provided with this 
stimulation, a compensating stimulation must be pro­
vided by the peer group in the school. Where all chil­
dren in the school come from families with similar low 
socioeconomic status, the negative effect produced by 
family background is reinforced rather than alleviated. 
313 F. Supp. at 94.

B. The Quality, Experience and Stability of the 
Teaching Staffs at the Segregated Schools Are 
Significantly Inferior to That of Denver’s Pre­
dominantly Anglo Schools.

The quality of education at a school is next most affected 
by the quality, experience and stability of its teaching 
staffs.28

1. T ea ch er E xp er ien ce .

When compared to city-wide averages, the segregated 
minority elementary, junior and senior high schools over 
the years have had significantly higher percentages of 
teachers with no prior teaching experience in the Denver 
public schools.29 These schools also had significantly higher 
percentages of probationary teachers,30 while teachers with

28 PX  500; Coleman, A. 1531a-32a.
29 PX  247, 260, 262, 263 (A. 2060a) as to elementary schools; PX  

278, 291, 293, 294 as to junior high schools; PX  307, 320, 322, 323 
as to senior high schools. Bardwell, A. 732a, 737a-738a, 742a-744a.

80 Teachers with less than 3 years’ experience in the Denver 
Public Schools. Compare PX  247 with PX  260, P X  278 with 
PX  291, PX  307 with PX  320.



41

ten or more years experience shunned these schools, pre­
ferring the predominantly Anglo schools.31

When the comparison of teacher experience was with the 
averages for the predominantly Anglo schools rather than 
the district average, the disparities were even greater :S2

P ercen ta g es  o f T ea ch ers  w ith  
No P r io r  D en ver  P u b lic  Schoo ls  

E xp e r ie n c e , 1968ss

Average
22 Minority Elementary Schools .............. 22.4%
20 Anglo Elementary Schools .................  9.8%
Total District ............................................  15.9%

The pattern was repeated at both the junior and senior 
high school level:

31 Ibid.
32 Bardwell, A. 725a-745a.
38 PX  260, PX  262. The disparity was as great in prior years:

Percentages of Teachers W ith No Prior 
Denver Public Schools Experience

1964 1965 1966 1967
22 Minority 13.7 10.7 15.8 20.9
20 Anglo 6.2 4.8 9.5 6.9
District 11.3 8.6 13.9 16.2

Source: PX  263, 264 (A. 2062a), 265 (A. 2064a), 266 (A. 2066a).



42

Percentages of Teachers With 
No Prior Denver Public Schools 

Experience, 1968Si

Junior High Schools Average
4 Minority ......................      34.8%
2 Anglo....... .....................      15.3%
District ..............................   21.1%

Senior High Schools

3 Minority ...................................... 16.3%
3 Anglo ..............................      7.4%
District ............................       10.3%

The trial court found that: “Faculty experience is an 
important factor in determining the educational opportu­
nity offered at a particular school . . . ” 313 F. Supp. at 79. 
Teacher salaries in Denver were based on the teacher’s level 
of experience; the greater the experience the higher the 
salary. A. 1249. For example, salaries ranged from $6,300 
to $9,900 for teachers with an A.B. degree. DX-HK, pp. 
36-37. Salaries were an important allocation of the Dis­
trict’s resources, accounting for some 69% of the total 
District budget. DX-HK, p. 17. Because of their higher 
concentration of experienced teachers, the predominately 
Anglo schools received a disproportionate share of these 
resources.

2. Teacher Turnover.

Because the District’s policies on teacher transfers be­
tween schools were premised on seniority, the high turnover 
of teachers in the minority schools created more vacancies 
typically filled by new teachers. 313 F. Supp. at 80. 34

34 P X  291, 293, 294, 295, 296, 297 as to junior high schools. PX  
320, 322, 323, 324, 325, 326 as to senior high schools.



43

The trial court held:
The effect of teacher turnover on the quality of educa­
tional opportunity is twofold. First, a high teacher 
turnover rate tends to have a disorganizing effect on 
the school in question. Furthermore, and most impor­
tant, the teacher turnover rate in a particular school 
significantly affects the experience of the faculty at 
that school. 313 F. Supp. at 80.

The trial court also recognized the destructive psycho­
logical impact of this high turnover on students, and its 
contribution to the aura of inferiority which prevails in 
the segregated school. 313 F. Supp. 81.

3. Teacher Attitudes.
The teachers in the minority schools are often afflicted 

with attitudes and expectancies which contribute to the in­
feriority of the educational opportunity.* 36 The trial court 
recognized this factor:

Teachers assigned to these schools are generally dis­
satisfied and try to escape as soon as possible. Further­
more teachers expect low achievement from students 
at segregated schools, and thus do little to stimulate 
higher performance. 313 F. Supp. at 81.

The matter of expectancy then becomes a self-fulfilling 
prophecy of failure.86

36 Dodson, A. 1473a.
36 PX  27, pp. 93-100,104-106; Dodson, A. 1473a.



44

C. Inequality of Facilities.

The trial court found that in general the segregated 
schools occupied older buildings and smaller sites.37 38 313 
F. Supp. at 80-81. Dr. Dan Dodson testified that where 
minorities were relegated to these outdated, older facil­
ities, “it stands as a symbol of their impotence in the 
community,” it was a “place of less choice, and you go 
there only because you’re not able to require that you be 
allowed to go someplace else.” A. 1494a. The court con­
cluded that, standing alone, such disparities were not sub­
stantial factors with respect to the educational quality of 
the school, but found that it did have a cumulative adverse 
impact:

However, we do recognize that in schools which are 
segregated, have less experienced teachers and pro­
duce generally low achieving students, the fact that 
the physical plant is old may aggravate the aura of 
the inferiority which surrounds the school. 313 F. 
Supp. 81.

D. The Inferiority of the Segregated Schools Is Also 
Demonstrated by the Drastically Low Level of 
Academic Achievement Which They Produce.

The trial court’s findings of the poor scholastic perform­
ance in the segregated schools concentrated on results of 
tests administered during the 1967-68 school year. 313 
F. Supp. at 78-79, 86. The school district’s own witnesses 
acknowledged that the results were typical, and that achieve­
ment data from earlier tests would disclose the same dis­
parities.88

37 PX  268, 269, 270 (A. 2068a), 271 (A. 2070a) as to elementary 
schools; PX  298, 299, 300, 300-A for junior high schools; PX  327, 
328, 329, 330, senior high schools; Dodson, A. 1494a.

38 Oberholtzer, A. 1437a-1439a; Cavanaugh, A. 643a, 654a; PX  
377, 378; A. 2098a; A. 2100a.



45

The trial court considered only schools which were ap­
proximately in excess of either 70% Negro or 70% His- 
pano, resulting in findings relating to 14 elementary, 2 
junior and 1 senior high school. The evidence disclosed 
the same low level of achievement, teacher experience, 
etc. at Morey Junior High School and at 8 other elemen­
tary schools39 whose combined Negro and Hispano en­
rollments ranged from 70% to as high as 98% in 1968.40 
However, the trial court refused to find such schools to 
be “segregated,” and ordered no relief for them. 313 F. 
Supp. 77; 313 F. Supp. at 92.

With regard to the 14 elementary schools which the 
trial court did find to be both segregated and inferior, in 
1968, at the third grade their mean achievement level 
was a half year behind the district average.41 The dis­
parity was of course greater when the minority schools 
were compared to a group of 20 predominately Anglo 
schools, whose mean achievement level was more than one 
and one-third years ahead of the minority students.42

By the fifth grade the minority students were nearly 2.2 
grade levels behind students in the selected predominately 
Anglo schools :43

39 Boulevard, Crofton, Ebert, Garden Place, Gilpin, Swansea, 
W yatt and W yman; see PX  509 (A. 2122a), 510 (A. 2124a); 
Bardwell, A. 1603a-1614a.

40 PX  510, A. 2124a.
41 Grade level 2.97 compared with the 3.57 district average.
42 PX  377 (A. 2098a), 380 (A. 2102a), 381 (A. 2104a), 382. 

The Anglo schools were at the 4.34 grade level.
43 PX  376-R, 380, 381; A. 2096a; A. 2.102a; A. 2104a.



46

Grade Level 
Score 

5 th Grade
Minority Schools 
District Average 
Predominately Anglo Schools

4.30
5.22
6.45

Achievement at the ninth grade level is expressed as a 
percentile score based on national averages.44 * The trial 
court found that the district-wide average at the ninth 
grade was percentile 53.8; the two minority schools, Baker 
and Cole, were 25.6 percentiles behind at 28.2.46 313 F. 
Supp. at 79. Principal Morrison testified that out of 
approximately 325 seventh graders at Cole, 160 of them 
were reading three to four grade levels below normal. A. 
1894a.

Similarly, the segregated senior high school, Manual, 
was achieving at the 30th percentile while the district-wide 
eleventh grade level was the 52nd percentile. 313 F. Supp. 
at 79.

Another characteristic of the impact of the segregated 
schools is the progressive regression in achievement as the 
minority child proceeds through the grades. This regres­
sion is illustrated in Exhibit 382, based upon test results 
in 1969. At the second grade the gap in achievement be­
tween selected Anglo and minority schools is not quite one 
full grade; by the third grade this gap has increased to 
1.41; in fourth grade, to 1.86; by the fifth to 2.10. The aver­
age minority achievement in the fifth grade, which should

44 Thus at the 50th percentile one-half of those tested nationally 
scored above and one-half below that level; a t the 75th percentile
75% of those tested scored below that level.

4B Morey was at the 29th percentile. PX  83.



47

be at grade level of 5.6 is only at 4.42, while the children 
in the predominantly Anglo schools are achieving at a 
level of 6.53. The longer the minority child stays in the 
segregated school the further behind he gets, even though 
he “passes” progressively from grade to grade.46

E. Most of Denver’s Minority Children Attend the 
Inferior Schools.

Exhibit 374 identifies 45 elementary schools achieving at 
or below the 40th percentile in the fifth grade, 1968. Over 
86% of the District’s Negro elementary school children and 
over 78% of the Hispano children attend these schools,47 
a total of 17,024 minority children. In contrast, Exhibit 375 
identifies 22 schools achieving at or above the 60th per­
centile. While over 40% of the Anglo children in the Dis­
trict attend these schools, only 4% of the Negro and His­
pano children attend them.

F. The Fact of the Inequality Has Been Known for 
Years by the School Administration.

Two committees appointed by the Board, one reporting 
to 1964 and the other in 1967, each recognized the inequality 
and concluded that there was a close relationship between 
the concentration of minority students and inequality of 
educational opportunity.48 The 1964 Report noted:

46 PX  380 (A. 2102a), 381 (A.2104a), 382; Elite, A. 555a-556a; 
Dodson, A. 1473a-74a; Dodson, P H  Tr. 311-313.

47 PX  376-R, A. 2096a; Elite, A. 553a-554a. In  the 1968-69 school 
year the 22 minority elementary schools contained 79.5% of the 
D istrict’s black elementary children (6,597) and 46.6% of Hispano 
children (5,858), but only 5.4% of the Anglo children (1,815). 
The 30 elementary school achieving at or below the 30th percentile 
contain 60.5% of the black children (5,022), 63.6% of the Hispano 
(7,989) and 12.5% of the Anglo children (4,205). See also, PX  
241; Bardwell, A. 704a-706a.

48 PX  20, A. 2003a; PX  21.



48

There is abundant authority to the effect that “de 
facto” separation in schools may result in educational 
inequalities, and there is in Denver wide belief among 
the racial and ethnic minorities that the schools to 
which their children go are in some way unequal. 313 
F. Supp. at 81.49

That the committee was able to discern this inequality is 
noteworthy, for the members were given none of the data 
on teacher experience, teacher turnover, drop-out rates or 
achievement on an individual school basis which led the 
trial court to its factual findings of inequality. Of course, 
the school administration reviewed the test results annu­
ally, and knew of the disparities.* 60 61

However, it was not until October of 1968, shortly after 
a new superintendent replaced a 20-year incumbent, that 
the school administration first made public comparative 
school achievement scores on a school-by-school basis.51 
Prior to that time not even board members had been fur­
nished with this data. The revealed disparities had a strong 
impact on the attitudes of some members of the Board of 
Education with regard to the availability of equal educa­
tional opportunity in the minority schools. Board member 
Voorhees concluded “something was wrong” in the way 
minority children were treated in the system:

I suppose what crystallized this change more than any­
thing was the release by the Superintendent sometime 
last fall, I believe, of some test scores—comparative

49 See also, 313 F. Supp. at 81-82.
60 Cavanaugh, A. 631a; Oberholtzer, A. 1330a-31a, A. 1437a-38a.
61 Cavanaugh, A. 637a-638a. According to Mr. Cavanaugh the 

underlying reason for the prior policy against publishing compara­
tive data was that such comparisons “would be detrimental to the 
esprit de corps.” A. 638a.



49

test scores which indicated to me a direct correlation 
between concentration of poor children, minority chil­
dren, and low achievement as compared to other schools 
where these conditions were not present. A. 145a.

For the first time the minority community could see what 
they had suspected all along—the clear inferiority of their 
schools.

G. The School Administration Obfuscated the Poor 
Achievement Results at Minority Schools.

Prior to 1968 the school administration had been less than 
candid about achievement levels in the minority schools. 
Their written reports, distributed to teachers and parents 
often described dismal results in glowing terms.52

The 1956 test results for 6th grade pupils at predomi- 
nantly-Hispano Fairview Elementary School showed most 
students performing poorly and nearly 2 or more years 
below grade level. But in their 1956 report on these test 
results sent to Fairview parents and faculty the school ad­
ministration stated: “The 1956 test results indicate a good 
consistent program of instruction at Fairview school. . . . 
The faculty should be pleased with these achievements.”

Similarly dismal achievement results were experienced 
that year at predominately-Negro Wyatt Elementary 
School, but the report concluded that: “The faculty should 
be well pleased with these achievements.” The record re­
flects numerous other examples of this pattern of reporting 
about minority schools.

The school administration’s gloss also covered poor 
achievement at the junior high school level. In 1956, Cole 
Junior High School, predominately Negro, was achieving 
at the 21st composite percentile at 9th grade and below

62 P X  3 7 9 ;  K l i t e ,  A .  5 5 9 a - 5 6 2 a .



50

expectation,03 In spite of this poor performance, the school 
administration at Cole summed up the situation as follows: 
“ • • • the general picture of this group is very similar to 
that of the group tested in 1953. In both years, pupils at 
all levels evidenced satisfactory achievements in the subject- 
matter area. The faculty should be pleased with these 
accomplishments.” * 64 65

In 1968, 9th grade students at Cole on similar tests 
achieved at the 20th composite percentile, 5 points below 
expectation and 30 points below the national norm. Yet, the 
district’s report to parents and faculty declared: “Two- 
thirds of the scores indicated on the accompanying chart 
fall at or about expectancy, a fact that indicates that the 
majority of 9th grade pupils at Cole Junior High School 
are making very satisfactory academic progress in the 
various areas measured by these tests.” 66

H. The District Established Low Achievement Stan­
dards for the Segregated Schools.

The reason for these accolades lies in another pernicious 
practice of the school administration, the establishment of 
levels of expected performance. Based upon the inter­
quartile distribution of I.Q. scores for the class in the 
school,56 the District set up low achievement expectancies 
for each of the minority schools.67 This expectancy was

53 At predominately-Anglo Merrill, 9th graders were achieving 
at the 82nd composite percentile, 10 points above expectancy. The 
adm inistration’s summary for Merrill paralleled that of Cole: 
“. . . the faculty should be pleased with these attainments.”

64 Klite, A. 556a-559a; PX  379.
65 PX  379.
66 Cavanaugh, A. 635a-636a; Klite, A. 545a; 559a-562a.
67 In  the fourteen court-designated elementary schools, a t the 

5th grade level the school administration uniformly established the 
expectancy at the 23rd percentile. Thus 77% of the children tested



51

for failure. Officially excused for substandard academic 
performance the teachers in the minority schools could rest 
assured that the failure was not their fault; according to 
the District’s standards it was not a failure at all.58 The

nationally achieved above this level. Only one of these schools 
actually achieved above the 30th percentile. In  1968 the median 
results were as follows:

F ifth  Grade 1968

School
Expectancy
Percentile

Score
Percentile

Bryant-W ebster 23rd 22nd
Columbine 23rd 19th
Elmwood 23rd 28th
Elyria 23rd 23rd
Fairm ont 23rd 14th
Fairview 23rd 18th
Greenlee 23rd 17th
Hallett 23rd 32nd
Harrington 23rd 15th
Mitchell 23rd 12th
Smedley 23rd 19th
Smith 23rd 30th
Stedman 23rd 28th
W hittier 23rd 19th

For 9th graders at Baker and Cole in 1968 the overall median ex­
pectancy was the 25th percentile; a t Morey, the 27th percentile; 
a t Smiley, the 36th percentile.
For 11th graders at East High School the overall median expec­
tancy was the 40th percentile; a t West High School, the 33rd 
percentile; at Manual, the 21st percentile. As to Manual the school 
administration commented:

“Eleventh grade pupils a t Manual High School have achieved 
very commendable levels of academic accomplishment com­
pared with expectancy. Even though the level of expectancy 
for these pupils is below national norms, they have, neverthe­
less, consistently achieved above the levels of expected achieve­
ment. I t  can be noted that Manual pupils achieved either at 
or above their expectancy on twenty-nine of th irty  checkpoints. 
I t is apparent that a good instructional program as well as 
effective pupil learning occur at Manual.”

That year the actual median achievement level at Manual was the 
29th percentile. PX  379.

68 P X  3 7 9 ;  D o d s o n ,  P H  T r .  3 1 3 - 3 1 4 .



52

district’s achievement reports emphasized test results in 
terms of expectancy rather than the grade equivalent which 
described the level where the children ordinarily would 
have been expected to perform. Often the expectancy was 
one or more grades below the grade equivalent. As noted 
above, the students and parents were reassured that the 
children were measuring up to their expectancy.59 With 
no comparable data readily available to them, minority 
parents had no way of finding out about the drastically 
low expectancies established for their children.

Mrs. Rachel Noel, only Negro to ever serve on the Board, 
recounted her experience with lower academic standards 
when at the fifth grade her daughter was transferred from 
predominantly-Anglo Park Hill Elementary School to pre- 
dominantly-Negro Barrett when it opened in 1960. She 
noticed that her daughter had little homework and was 
losing interest at Barrett. Her daughter explained that she 
was being taught in the fifth grade at Barrett what she 
had already had in the fourth grade at Park Hill:

“And I went to school and I talked to the teachers—to 
her teacher and I talked to the principal and—as a 
parent, trying to find out what it was. I sat in on the 
classes. And I wanted to see what it was. And to the 
best of my judgment and certainly my great concern 
based on her statements to me—it seemed that she was 
not getting what she should have gotten and what she 
would have gotten at Park Hill since she was having 
the same thing over in the fifth grade as she had had 
in the fourth.” A. 87a.

Thus it was common, and still is, for minority children 
to be passed from grade to grade although falling farther 
and farther behind; entering first junior and then senior

59 P X  3 7 9 .



53

high school with little hope that their academic perform­
ance would see them graduate from high school. As the 
school district observed when it was planning new Manual, 
the curriculum there had to reflect the fact that few if any 
Manual graduates would go on to college.60 That expectancy 
had been established when the children entered elementary 
school. The prophecy was fulfilled.

I. Drop-Out Rates are Highest In the Segregated Schools.

Little wonder that the so-called drop-out rate for these 
minority secondary schools is so high.61 In 1968 the pros­
pects of finishing Manual High School for a minority child 
entering Cole Junior High School in the 7tli grade were 
less than 23% ; a child entering Morey Junior High School 
was even less likely to be graduated: only 18 out of every 
100 would finish at East High School. The prospects of 
the combination of Baker Junior High School and West 
High School were little better: only 32 out of 100 would 
be graduated. A. 98a. Thus the system continuously 
creates another generation of future minority parents with 
a low level of education, and the cycle begins again.

J. The Trial Court Determined that a Cause of the
Inequality was the Segregated Condition of the 
Schools.

The trial court found, as a matter of fact that the segre­
gated schools were offering unequal and inferior educa­
tional opportunities to minority children. The trial court 
went on to find, as a matter of fact, that a cause of the 
inequality was the segregated condition of the school :62

60 PX  356: “For roughly three-fourths of the student body, col­
lege is virtually an impossibility.” A. 961a.

61 P X  400, 400-A; Bardwell, A. 776a-781a.
62 Dodson, A. 1472a-1477a; PX  20, pp. 1-8, D-l-D-11 A. 1999a- 

2004a; A. 2008a-09a; PX  27; Dodson, PH  Tr. 308-10; 312-315; 
338-39.



54

“ . . . [W]e cannot ignore the overwhelming evidence to 
the effect that isolation or segregation per se is a sub­
stantial factor in producing unequal educational op­
portunity.” 313 F. Supp. at 81.

“When we consider the evidence in this case in light of 
the statements in Brown v. Board of Education that 
segregated schools are inherently unequal, we must 
conclude that segregation, regardless of its cause, is 
a major factor in producing inferior schools and un­
equal educational opportunity.” 313 F. Supp. at 82.

. . Once it is found that these separate facilities are 
unequal in the quality of education provided, there 
arises a substantial probability that a constitutional 
violation exists.” 313 F. Supp. at 83.

Finally:
“The evidence in the case at bar establishes, and we 
do find and conclude that an equal educational oppor­
tunity is not being provided at the subject segregated 
schools within the District. . . . The evidence estab­
lishes this beyond any doubt. Many factors contribute 
to the inferior status of these schools, but the predom­
inant one appears to be the enforced isolation imposed 
in the name of neighborhood schools and housing pat­
terns.” 313 F. Supp. at 83.

In reaching this conclusion the trial court rejected the 
respondents’ position that the inequality was in fact attrib­
utable to factors beyond their control, such as home en­
vironment, nutrition, educational level of parents, etc.63 68

68 Dodson, P H  Tr. 339-43. Dr. Dodson characterized such excuses 
as being akin to “infant damnation”, cliches which the majority 
community uses to excuse the failure to educate the minority child. 
P H  Tr. 343-44.



55

K. The Respondents’ Own Policies Resulted In 
Creating the Inequality of Opportunity.

While the respondents sought to put the responsibility 
for failure upon the minority children,64 65 it is clear that 
many of the factors present in these schools which eon- 
tribute to their inferiority are directly attributable to the 
policies and practices of the school administration.

The low level of teacher experience in these schools is 
the direct result of the respondents’ policies regarding 
teacher assignment and teacher transfers.66

The high rate of teacher turnover in these schools is 
directly attributable to the respondents’ teacher transfer 
policy.66

The teacher assignment policies for minority teachers, 
principals and assistant principals, concentrating them in 
minority schools, reinforced the image of those schools as 
segregated and inferior.67

The establishment of a low academic expectancy for the 
minority schools both created and reinforced the teachers’ 
low expectancies, and became a self-fulfilling prophecy. 
The respondents’ combined policies of failing to report 
comparative test data, the dissemination of misleading re­
ports of test results and the passing of the children from 
grade to grade sought to justify the continuation of exist­
ing student assignment policies while at the same time 
dispelling the idea that there was a need for change.

64 Oberholtzer, A. 1329a-33a, A. 1357a-60a, A. 1362a-63a. 1970a- 
72a; Gilberts, A. 1710a-15a; A. 1831a-34a.

65 Johnson, A. 308a-09a, A. 312a-17a, A. 320a.
66 Johnson, A. 320a, A. 335a-36a.
67 Johnson, A. 336a-38a; Oberholtzer, A. 1352a-53a, A. 1393a-97a; 

303 F. Supp. 284-85.



56

Last, but by no means least, the respondents’ adherence 
to the neighborhood school pupil assignment policy in the 
face of segregated neighborhood residential patterns know­
ingly continued to assign minority children to unequal 
schools.68 As Judge Doyle said “It strikes one as incon­
gruous that the community of Denver would tolerate schools 
which are inferior in quality.” 313 F. Supp. at 83.

The trial court had abundant evidence to find the respon­
dents responsible for the inequality of educational oppor­
tunity offered to Denver’s minority students.

The Trial Court’s Conclusions as to the A ppropriate  
Rem edy for the Inequality of Educational O pportunity.

After concluding that the inequality of educational oppor­
tunity violated the Fourteenth Amendment, the trial court 
next addressed itself to the issue of remedy. For this pur­
pose an extensive separate hearing was commenced in May, 
1970, at which the parties presented opposing plans for 
relief. Bespondents advocated a remedy premised upon 
compensatory education, leaving the schools segregated. 
Petitioners’ plans were premised upon three components: 
desegregation, integration and compensatory programs in 
a desegregated setting.

The trial court defined the issue before it as follows:
The crucial factual issue considered was whether com­
pensatory education alone in a segregated setting is 
capable of bringing about the necessary equalizing 
effects or whether desegregation and integration are 
essential to improving the schools in question and pro­
viding equality. The evidence of both parties has been 
directed to this question. 313 F. Supp. at 94.

68 PX  20, p. A-5 (A. 2003a); Oberholtzer, A. 1402a-03a, A. 1406a- 
07a, A. 1413a-14a; Perrill, A. 1088a-90a.



57

The trial court, after considering the evidence presented, 
resolved this issue in favor of the remedial components 
presented by petitioners:

We have concluded after hearing the evidence that the 
only feasible and constitutionally acceptable program 
—the only program which furnishes anything ap­
proaching substantial equality—is a system of deseg­
regation and integration which provides compensatory 
education in an integrated environment. 313 F. Supp. 
at 96.

In support of this conclusion were the following findings 
by the court:

1. The evidence was “overwhelming” that equality 
“can only be brought about by a program of deseg­
regation and integration. 313 F. Supp. at 96.69

2. “ . . . [T]he segregated setting stifles and frustrates 
the learning process,” and deprives the minority 
students of the benefits of a heterogeneous group 
of fellow students. 313 F. Supp. at 96-97.70

3. Compensatory programs, both nationally and in 
Denver’s segregated schools have been uniformly 
unsuccessful, and the programs espoused by the 
respondents show'ed no greater promise. 313 F. 
Supp. at 97.71

69 Dodson, A. 1472a-74a; Sullivan, A. 1570a-71a; A. 1573a-80a; 
A. 1585a-87a; A. 1598a-1600a; Coleman, A. 1531a-37a, A. 1539a- 
44a, A. 1551a-52a; RH Tr. 74-75; O’Reilly, A. 1935a-41a, A. 1950a- 
55a.

70 Ibid.
71 O’Reilly, A. 1910a-35a; Reamer, A. 1905a-10a; W ard, A. 1853a; 

A. 1868a-69a, A. 1873a-74a, Morrison, A. 1890a. A. 1893a-94a; Gil­
berts, A. 1817a-18a, A. 1822a, A. 1827a-29a, A. 1831a-34a.



58

The evidence at the hearing on relief centered upon the 
issue of whether, standing alone, compensatory education 
programs in the court-designated schools would raise the 
quality of the educational opportunity which they offered. 
Petitioners’ experts uniformly asserted that these compen­
satory programs carried out in segregated settings had 
failed to significantly affect or improve achievement levels 
of the minority children.

Dr. James Coleman stated that studies of the effects of 
these compensatory programs “have not been very encour­
aging with regard to their effects.” A. 1537a. Coleman 
summed up the weakness of these programs as follows:

I think that the major problem with compensatory pro­
grams is that it’s much more difficult and, if possible, 
much more expensive to introduce such environmental 
changes in the child’s environment, not only within the 
classroom but outside the classroom when the actual 
social environment that he experiences in the sense of 
other children he talks to remains homogeneous with 
his past. A. 1543a.

The practical experience of Dr. Neil Sullivan while Super­
intendent of Schools at Berkeley, California, confirmed the 
thesis of the ineffectiveness of compensatory programs in 
segregated settings.

For four years prior to the institution of the desegrega­
tion of Berkeley’s schools the district had attempted to 
improve the segregated schools, nearly doubling the tax 
rate “in order to have many, many millions of dollars to 
pour into these black schools.” Emphasis was placed on 
lowering class size, new electronic equipment and materials, 
the use of para-professionals, cultural enrichment pro­
grams, and programs designed to build the minority child’s



59

self-esteem. As Sullivan said: “You name it and we tried 
it.” A. 1577a. Despite these efforts the programs “had no 
effect” upon minority achievement, and “overall there was 
retrogression in all the black schools in achievement.” A. 
1578a. Sullivan reached the conclusion that the best com­
pensatory education program was integration. A. 1576a.

Dr. Sullivan also testified as to how integration in Berke­
ley solved many of the problems of teacher turnover and 
low teacher experience. Teachers enjoyed teaching in an 
integrated school and stayed with the system. A. 1585a. 
Classroom discipline problems which had inhered in the 
segregated black schools were greatly alleviated. A. 1586a. 
Integration had no adverse effect upon Anglo achievement 
and unlike the experience with compensatory programs, 
minority achievement improved.

Dr. Robert O’Reilly also presented evidence about the 
lack of efficacy of compensatory programs in segregated 
settings. O’Reilly was Chief of the Bureau of School and 
Cultural Research for the New York State Education De­
partment, and as such had directed a study of the efficacy 
of segregated compensatory programs throughout the 
United States. More than 1,200 different programs had 
been reviewed and evaluated. The results of these com­
prehensive evaluations were published in 1970, appearing 
in the record here as PX 508, “Racial And Social Class 
Isolation in the Schools.”

The respondents’ proposals for compensatory education 
then before the trial court included elements such as addi­
tional teaching staff, lowering of teacher-pupil ratios, use 
of paraprofessionals and teachers’ aides, diagnostic labora­
tories, group counseling, use of staff psychologists, cultural 
understanding programs, programs directed toward im­
proving the child’s self-image, increasing parental in­



60

volvement, remedial reading and mathematics, programs 
designed to motivate minority children and to make the 
curriculum more relevant, use of multimedia teaching aids, 
field trips and differentiated staffing.

O’Reilly testified that the 1,200 programs he had studied 
typically had these elements; that there was really nothing 
new or innovative about the respondents’ proposal. Fur­
ther, it was his opinion that segregated compensatory 
programs did not raise minority achievement:

My opinion is, after reviewing the studies and their 
results that there are no general practical effects ac­
cruing to students’ educational development as a func­
tion of compensatory education programs which typ­
ically include these kinds of components. A. 1929a.

O’Reilly had also studied and evaluated the effects of 
integration upon minority achievement. Based upon analy­
sis of some forty integration programs, it was his opinion 
that integration improved minority achievement, While 
not recommending any “doctrinaire approach,” 72 and 
stating that integration was not a “cure-all,” 73 O’Reilly 
concluded:

. . . [T]he results generally show that the educational 
development of the desegregated minority students 
tends to he facilitated or tends to improve within a 
year or two after the desegregation experience is ini­
tiated. A. 1937a.

Comparing the effect of segregated compensatory pro­
grams with integration,

72 A. 1933a.
73 A. 1935a.



61

. . . [T]lie results here tend to show that the inte­
grated students perform at higher levels on achieve­
ment tests as compared to students in segregated 
schools receiving compensatory education. A. 1937a.

The principals at three minority schools, Greenlee Ele­
mentary, Cole Junior High and Manual, had testified that 
they believed compensatory programs in their schools 
were effective. O’Reilly dismissed this attitude as being 
typical:

I don’t think you can judge [the effectiveness of 
these programs] from what a person has to say about 
his opinions. Teachers typically and school adminis­
trators typically think what they’re doing is great. 
A. 1956a.

This opinion was borne out by Denver’s experience with 
compensatory programs. None of them had any demon­
strable effect upon minority achievement. Mr. Ward, prin­
cipal at Manual, described the programs he had estab­
lished beginning in September, 1966, when he became prin­
cipal.74 While he was enthusiastic about these programs75 
he admitted that during this period the level of academic 
achievement at Manual declined from the 34th percentile 
in 1965 to the 28th percentile in 1968.76

In its opinion of May 21, 1970 (313 F. Supp. 90), the 
trial court did not decree a specific remedy or plan for 
implementation, but rather established guidelines which 
the detailed plan would have to meet. These included 
desegregation of 7 of the 14 court-designated elementary

74 A. 1845a-1853a.
75 A. 1853a.
76 A. 1874a.



62

schools in September, 1971; desegregation of the remain­
ing 7 schools in September, 1972; desegregation of Baker 
and Cole Junior High Schools commencing in September, 
1971, with implementation to be completed by the follow­
ing- September. By September, 1972, Manual Senior High 
School was to be transformed into a city-wide open school 
with offerings emphasizing vocational education and pre- 
professional training. 313 F. Supp. at 97-99.

In addition to desegregation the trial court’s guidelines 
included integrative programs directed to the attitudes of 
teachers, parents and children; orientation in the fields of 
minority cultures, teaching programs relating to minority 
children in an integrated environment and community ed­
ucation about the educational benefits of the desegregation 
program. Finally, the court accepted the compensatory 
programs recommended by respondents, but in the set­
ting of integrated rather than segregated schools. 313 
F. Supp. at 99.

Events Subsequent to the Trial Court’s Opinion of 
May 21, 1970.

The details of the plans necessary to implement the 
desegregation called for in the guidelines was left for 
the parties to mutually resolve. By March, 1971, the 
board drew up six alternate plans for desegregation of 7 
of the fourteen designated elementary schools. Each of 
the six plans used a different combination of minority 
schools; each also used a different group and quantity 
of predominantly Anglo receiving schools. All six plans 
were based on the concept of satellite zoning, whereby 
portions of the minority schools’ attendance areas were 
carved up and assigned to Anglo schools. After a series 
of public meetings the board later selected one of these, 
“Plan B,” for presentation to the court.



63

At the secondary level the board proposed to desegre­
gate Baker, and to make both Cole and Manual “magnet 
schools.”

All of the proposals were represented to be workable, 
reasonable, and within the financial and administrative 
capabilities of the school district. The board also repre­
sented that it could implement their proposals by the 
September, 1971 deadline established by the court.

Being unable to agree with most of the board’s proposals, 
the petitioners developed several alternate pairing pro­
posals for the desegregation of the fourteen minority ele­
mentary schools, pairing them with quality predominantly 
Anglo schools. At the secondary level petitioners de­
veloped proposals for the desegregation of both Baker 
and Cole. Petitioners adopted the magnet concept for 
Manual.

In May 1971, a second relief hearing was held, and the 
opposing plans were presented. At the close of the hear­
ing the court selected a plaintiffs’ modification of one of 
the board’s six alternate elementary plans, and adopted 
the board’s proposals for Baker, Cole and Manual.77 All 
of these plans were to be implemented in September, 1971.

A few weeks later, the issuance of the opinion of the 
court of appeals on June 11, 1971, nullified the implementa­
tion of these remedial orders. 445 F.2d 990.

77 No appeal was prosecuted from the oral order of the trial court 
a t the close of the second relief hearing, and no review of that pro­
ceeding is sought in this Court. The original transcript of that 
hearing has been filed with the Clerk of the Court.



64

Events Subsequent to the Issuance of the Court of 
Appeals Opinion on June 11, 1971.

While not relevant to the issues here, for the sake of 
completeness we will relate the other judicial action which 
took place following the Court of Appeals decision.

That decision affirmed the trial court’s conclusion that 
the Hallett and Stedman elementary schools had been in­
tentionally segregated by the board. Those schools re­
ceived no relief under that portion of the trial court’s or­
ders which were affirmed by the Tenth Circuit, as they 
were not included in Resolution 1531. On June 23, 1971 
petitioners requested the trial court to order respondents 
to file a desegregation plan for Hallett and Stedman to 
be implemented with schools’ opening in September, 1971. 
Respondents opposed this motion, and the trial court on 
July 28 denied it without prejudice, stating that it was 
unclear from the decision whether such relief was contem­
plated by the Court of Appeals. On August 2 petitioners 
filed a “motion seeking clarification” of this question, and 
on August 30 the Court of Appeals issued an order stating 
that such desegregation relief would be appropriate and 
directing the trial court to hear the matter “and determine 
the proper relief to be granted.” A. 1986-87a.

At the trial court’s hearing on September 8, 1971 the 
court selected plans for Hallett and Stedman and ordered 
them to be implemented by November 8, 1971. The order 
was reduced to writing and entered on September 28, 1971. 
Thereafter, respondents’ notice of appeal was voluntarily 
dismissed when pursuant to stipulation the order was modi­
fied and implementation rescheduled. The new order, en­
tered October 19, 1971, was implemented at the beginning 
of the second semester in January, 1972.



65

Summary of Argument

Petitioners are seeking a district-wide plan of relief for 
segregation and inequality of educational opportunity in 
School District No. 1. In support of this relief, petitioners 
contend as follows:

I.
A. That the findings of the trial court as to a ten-year 

segregation policy affecting a substantial part of the Den­
ver system, which findings were affirmed below, justify and 
necessitate a plan of relief which is not limited to the few 
schools which were most recently and overtly affected by 
this policy. While the courts below’ thus restricted the 
remedy, it should be extended to the entire Denver Dis­
trict. Only system-wide relief promises to effectively rem­
edy the effects of the past discriminatory policy and to 
prevent its reoccurrence in the future, particularly where 
the District’s segregatory practices in the past have been 
carried on covertly under the cover of a racially-neutral, 
“color blind” neighborhood school policy.

B. The courts below employed erroneous notions of peti­
tioners’ burden of proof on the issue of purposeful segre­
gation by not requiring that respondents justify their 
segregatory actions by showing them necessary to achieve 
a compelling, nonracial state objective. If this proper 
standard had been applied, the record here required a 
finding of even more purposeful segregating action than 
was found by the courts below. The courts below erred 
and saddled peitioners with an impossible burden of proof 
by taking as excuse or justification for segregatory effects 
any merely rational nonracial excuse which respondents 
offered. This error was particularly palpable as applied 
to the evidence of boundary changes increasing the attend­
ance areas of Cole Junior High School and Manual Train­



66

ing High School to include and coincide with the areas 
of most recent Negro neighborhood expansion. Similarly, 
the courts below ignored the record as well as common 
experience • by ■ refusing to give effect to the impact of 
schools decisions upon the racial composition of affected 
neighborhoods, thus allowing late’r neighborhood segrega­
tion to excuse prior segregatory acts because there was 
no direct and immediate causal relationship. The court 
below also ignored the impact of faculty segregation 
practices.

C. Where the school authorities have been found guilty 
of intentional segregation as to some actions, other actions 
having a similar segregatory result should not be clothed 
with any presumption of legitimacy but rather should be 
considered prima facie illegal unless justified by the show­
ing of a nonracial compelling state interest. Had the 
courts below employed this test it would have compelled a 
finding of more pervasive segregation throughout the sys­
tem, further justifying the necessity for district-wide re-

With regard to the unequal educational opportunity 
systematically being provided to Denver’s minority stu­
dents, the trial court properly held such deprivation to 
constitute denial of equal protection and fashioned an ap­
propriate remedy for it, in light of the evidence and the 
traditional powers and duties of a court of equity. While 
the remedy was proper, it was improper to withhold it 
from other minority schools displaying the same inequali­
ties and inferiority as those to which the trial court ex­
tended relief.

In reversing, the appellate court misconceived the stan­
dards of equal protection which applied, requiring a show­



67

ing that the State had deprived minorities of equal educa­
tional opportunity intentionally, that is to say, with odious 
intent, whereas all that is required is a showing that state 
action has resulted in a racial discrimination. If not justi­
fied by compelling state interest, the racial discrimination 
will deny equal protection. Furthermore, the appellate 
court’s inability to find that the inequality was the result of 
any state action was derived from ignoring the variety 
of decisions made by the school administrators which con­
tributed to the inequality of opportunity in and the in­
feriority of these minority schools. The Tenth Circuit 
also either rejected the trial court’s evidentiary findings 
as to the cause of the inequality in violation of the “clearly 
erroneous” standard of Rule 52(a), or it incorrectly con­
cluded that the district court had employed a per se rule 
of equating segregation with inequality, whereas Judge 
Doyle’s finding was essentially factual and fully supported 
by the evidence.

III.
Finally, the combination of the two constitutional viola­

tions found by the trial court should be remedied together 
in a comprehensive, district-wide plan.



68

A R G U M E N T

I .

R acial S eg reg a tio n  in  th e  D e n v e r S chool System  
Violates th e  F o u r te e n th  A m en d m en t a n d  S h o u ld  Be 
R em ed ied  by  a  C o m p reh en siv e  System -W ide D eseg re ­
gation Plan.

Introduction

This case presents the situation of covert racial segrega­
tion practiced by state officials in violation of the state’s 
own laws78 as well as this Court’s ruling that “racial dis­
crimination in public education is unconstitutional.” 
Brown v. Board of Education, 347 U.S. 483 (1954) 
{Brown I), and 349 U.S. 294 (1955) (Brown II). Colorado 
law lends no support to a practice of racial segregation 
or discrimination. Indeed, Colorado’s Supreme Court held 
in 1927 that a Denver practice of excluding black students 
from school programs at Manual High School and Morey 
Junior High violated state law. Jones v. Newlon, 81 Colo. 
25, 253 Pac. 386 (1927). At the time of Brown, Denver 
had no fully developed “dual system” of entirely separate 
schools for blacks and whites but black pupils in Denver 
were concentrated in a few schools.79 The Superintendent

78 An example of similar violations soon after Brown  is Clemons 
v. Board of Education of Hillsboro, 228 F.2d 853 (6th Cir. 1956).

79 The most complete data in the record about the p re-Brown 
distribution of pupils in Denver by race is data for the 1946-47 
school year. PX-336, A. 2084a. There were only 1,832 Negroes 
(3.6%) in a school system of 50,999 regular daytime pupils. 
Nevertheless, the concentration of Negroes in three elementary 
schools, one junior high and one senior high was severe. W hittier 
Elementary School was 90% black and enrolled 50% of the black 
elementary students in Denver. I t  was the first, and until 1944 
the only school to have any black teachers. A. 2106a, PX-410. 
Mitchell had 13% and Gilpin had 12% of the black elementary



69

of Schools concluded, despite this racial concentration, 
that the Brown decision “did not apply to us” (A. 1400a) 
but only applied to “separate school systems for the Negro 
and the Anglo. A. 1310a. Superintendent Oberholtzer 
took the view that no racial statistics should be maintained 
(A. 1399a), and that it violated the Colorado Constitution 
to take any action to relieve the concentration of Negroes 
in Negro schools. A. 1370a. It never occurred to the 
Superintendent to inquire whether the practice of assign­
ing minority teachers to minority pupil schools violated 
the state or federal Constitution.80 But see Swann v. Board 
of Education, 402 XJ.S. 1, 18 (1971); United States v. 
Montgomery County Board of Education, 399 XJ.S. 225 
(1969); Bradley v. School Board, 382 XJ.S. 103 (1969); 
Rogers v. Paul, 382 XJ.S. 198 (1969).

Notwithstanding the board’s denials of racial motiva­
tion and vigorous defense to the charge, the district court 
concluded that the Denver authorities “carried out a 
segregation policy” during a ten year period up until the 
filing of this lawsuit in 1969. 303 I1. Supp. at 287. The 
findings of deliberate acts designed to accomplish racial 
segregation, which were affirmed on appeal, are all the 
more remarkable considering the strict burden of proof

students; both latter schools were predominantly minority (His- 
pano and black) schools. Cole Junior High was 20% black and 
enrolled 88% of the blacks in Denver junior high schools. Manual 
Training High was 23.4% black and 86% of the blacks a t the high 
school level attended this one school.

80 Article IX , Section 8 of the Colorado Constitution provides: 
“Section 8. Religious test and race discrimination forbidden—- 
sectarian tenets.—No religious test or qualification shall ever 
be required of any person as a condition of admission into any 
public educational institution of the state, either as a teacher 
or student; and no teacher or student of any such institution 
shall ever be required to attend or participate in any religious 
service whatever. No sectarian tenets or doctrines shall ever 
be taught in the public schools, nor shall any distinction or 
classification of pupils be made on account of race or color.”



70

placed on plaintiffs by the courts below which decided that 
only a showing that board action was a sham or subterfuge 
and that no rational criteria could support a given board 
action would suffice to establish sufficient circumstantial 
evidence to prove an intent to segregate.

The courts below regarded this deliberate policy of 
segregation carried out by official acts of local school 
officials as a plain violation of Brown. That result is 
consistent with the view of other courts which have 
condemned segregation resulting from covert policies of 
administrative officers and local school boards as unconsti­
tutional in a growing body of decisions.81 This Court has 
several times taken note of the policies of resistance and 
evasion of Brown which developed in southern states in 
the years since 1954. Cooper v. Aaron, 358 U.S. 1 (1958); 
Griffin v. School Board, 377 U.S. 218 (1964); Swann v. 
Board of Education, 402 U.S. 1, 13 (1971). The pattern 
of covert racial discrimination in the Denver schools 
revealed by this record merits equally vigorous condemna­
tion. * 111

81 Taylor v. Board of Education of New Rochelle, 191 F. Supp. 
181 (S.D.N.Y. 1961), appeal dismissed, 288 F.2d 600 (2nd Cir. 
1961), 195 F. Supp. 231 (S.D.N.Y. 1961), aff’d, 294 F.2d 36 (2nd 
Cir. 1961), cert, denied, 368 U.S. 940 (1961); Clemons v. Board of 
Education of Hillsboro, Ohio, 228 F.2d 853 (6th Cir. 1956), cert, 
denied, 350 U.S. 1006 (1956); Davis v. School District of City of 
Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970), aff’d 443 F.2d 573 
(6th Cir. 1971), cert, denied, 404 U.S. 913 (1971); Bradley v. 
Milliken, 433 F.2d 897 (6th Cir. 1970), 438 F.2d 945 (6th Cir.
1971),------F. Supp. — -  (E.D. Mich. Sept. 1971); United States
v. School Dist. No. 151, 286 F. Supp. 786 (N.D. 111. 1967), affirmed, 
404 F.2d 1125 (7th Cir. 1968), on remand, 301 F. Supp. 201 (N.D.
111. 1969), affirmed, 432 F.2d 1147 (7th Cir. 1970), cert, denied, 
402 U.S. 943 (1971) ; United States v. Board of School Commis­
sioners of Indianapolis, 332 F. Supp. 665 (S.D. Ind. 1971) ; Spang­
ler v. Pasadena City Board of Education, 311 F . Supp. 501 (C.D. 
Cal. 1970).



71

In Part I-A of this Brief, we submit that the district 
court’s findings of various acts of unlawful segregation 
which were affirmed on appeal are sufficient to require that 
Denver be dealt with as a segregated school system and 
require that the courts in the exercise of their remedial 
function provide system-wide relief and not merely relief 
limited to certain individual school situations.

In Part I-B we urge that the unlawful segregation 
practices in Denver were even more extensive than the 
courts below found and that findings that segregation at 
some schools was not unlawful were based on the applica­
tion of wrong* legal standards and perspectives.

In Part I-C we suggest that where intent to segregate 
has been demonstrated as to some of the board’s actions, 
other decisions whose effect is segregatory should be 
presumptively unlawful unless supported by a compelling 
nonracial justification and not merely an available non- 
racial explanation.

A. Denver’s Unconstitutional Ten Year Pojicy of Racial 
Segregation Necessitates a Requirement for System- 
wide School Desegregation,

The district court found that the Denver officials had 
carried out a ten year policy of racial segregation in the 
Denver schools. Although the principal findings related 
mainly to eight schools, the findings establish systemic 
discrimination which affected the entire black school popu­
lation. Racial discrimination in the assignment of black 
teachers was shown to have been system-wide and to have 
been the policy82 since the first black teacher was hired 
in 1934 (PX 410, A. 2106a). The eight schools upon which 
the district court focused the findings of unlawful dis­
crimination enrolled 5,139 black children, more than a

82 See Statement supra, pp. 11-13, 19-21.



72

third of the black children in the City, including one- 
fourth of black elementary children, over two-thirds of 
the black junior high pupils and two-fifths of black high 
school pupils.83 Thus, the findings of deliberate manipula­
tions to accomplish segregation do not pertain to an 
isolated or trivial fragment of the system. Rather, they 
relate to a substantial part of the black community includ­
ing the community where black population growth was 
concentrated and where there was thus the most oppor­
tunity for discrimination during recent years.

The findings of discrimination relate to all of the 
mechanisms by which the system controlled pupil assign­
ment. Racial segregation was the hidden motive of Denver 
school officials and their undeviating policy when they 
made decisions affecting the Northeast Denver schools 
about such matters as size and location of new buildings 
and additions to buildings, capacity utilization, location 
of mobile classrooms, transportation policies, attendance 
area boundary decisions, optional zones and transfer 
policies. See Statement, supra at pp. 13-37; see also 
Argument II, infra at 93-101.

The interrelation of assignment practices at various 
schools is an obvious and established fact. As a former 
board president who testified for the defendants put it, 
“Once you change the boundary of any one school, it is 
affecting all the schools and so we had a concern about 
all of these changes.” A. 951a-952a. It is equally obvious 
that a practice of concentrating blacks in certain schools 
by structuring the pupil assignment process with racial 
considerations has a reciprocal effect of keeping other 
schools all white. Furthermore, such a policy is aimed 
at Negroes as a racial group and not merely at particular

83 See footnote 13, supra, p. 17.



73

Negroes. Discrimination in Denver was against blacks as 
a group although it was manifested in different ways 
against blacks in different situations. The ten year segre­
gation policy was effective everywhere in Denver that it 
was needed to accomplish segregation. In Park Hill where 
blacks were moving into white neighborhoods in the 1960’s 
the segregation policy was most overt and visible. 
Naturally it was less visible where schools were already 
segregated, and nothing new needed to be done to keep 
them segregated.

Plaintiffs have sought system-wide relief from the filing 
of the complaint which asked that the board (A. 31a-32a):

. . .  be required to submit . . .  a comprehensive plan 
for the School District as a whole, and for each school 
therein where such condition exists, which will 
effectively:

(i) Remove the segregation and separation of 
school children by race and ethnicity within 
and among such schools;

The piecemeal approach of trying to cure segregation at 
only those schools where there is proof of a deliberate 
policy of segregation and leaving other schools segregated 
is plainly inappropriate where the segregation is a part 
of a policy which inevitably affects all students and 
schools, white or black, either directly or indirectly. Such 
a piecemeal approach might be appropriate if an act of 
deliberate discrimination was truly isolated and uncon­
nected with the rest of a school system. But the district 
court’s findings of a segregationist policy negate any such 
notion in Denver.

The rescission of the three 1969 desegregation proposals 
which would have changed attendance patterns at schools



74

attended by one-third84 of the children in Denver was the 
“climactic and culminative act” of the board’s segregation 
actions and there was “no gainsaying the purpose and 
effect of the action as one designed to segregate.” 303 
F. Supp. at 285. The district court found that the rescis­
sion of Resolutions 1520, 1524 and 1531 was an action 
of deliberate racial segregation entirely unrelated to any 
nonracial considerations, done in haste, without study, 
without any nonracial educational justification, and over 
the opposition of the school superintendent. Judge Doyle 
wrote:

The rescission of Resolutions 1520, 1524 and 1531 
was a legislative act which had for its purpose restora­
tion of the old status quo and was designed to per­
petuate segregation in the affected area. This act in 
and of itself was an act of de jure segregation. It 
was unconstitutional and void. 303 F. Supp. at 295.

The rescission of the three resolutions demonstrates a 
general policy of segregation affecting schools in every 
part of Denver which would have been involved in the 
desegregation effort planned by the Superintendent and 
were left segregated by the rescission.

Petitioners do not read the district court’s final deci­
sion on the merits as rejecting the idea of system-wide 
relief. To be sure the court held that plaintiffs failed to 
prove deliberate discrimination as to certain schools in 
regard to boundary changes and optional zones. But the 
court simultaneously ordered desegregation of those and 
other schools on another theory—the inequality theory 
discussed in Part III of the opinion (313 F. Supp. at 77,

84 See chart a t 445 F.2d 1008-1009, which indicates that 31,767 
pupils would have attended the schools involved in Resolutions 
1520, 1524 and 1531 if they were implemented.



75

et seq.)-—and thus had no need to decide whether desegre­
gation of those same schools might not be required to 
remedy the effects of the board’s general policy of dis­
crimination or jjrevent it from being carried forward in 
the future.

We submit that it ought to be entirely obvious that 
school segregation resulting from shams, subterfuges and 
surreptitious practices can only be rooted out and prevented 
if equity courts approach the problem of eliminating the 
effects of past discrimination and preventing future dis­
crimination with a view to the practicalities of the situa­
tion. It has long been accepted that it is necessary to adopt 
a pragmatic approach to eleminating dual systems created 
by state laws because of the problems courts have encoun­
tered in enforcement of the Brown decision. See, e.g., Green 
v. County School Board, 391 U.S. 430, 438, n. 4 (1968); 
Swann v. Board of Education, 402 U.S. 1, 26 (1971). A 
fortiori there is need for a similarly practical view and 
for remedial action extending beyond the narrow area of 
proven violations in the case of a school district with a 
history of segregation by underhanded subterfuges. There 
might once have been some room for assumptions that dual 
school systems would generally obey Brown with good faith 
efforts, but there is by definition no basis for any such 
assumptions about a school district which has been found 
guilty of deliberate violations of Brown by covert segrega­
tion practices.

In the Green case, the Court cites precedents in voting 
rights, labor law and anti-trust cases as supporting the 
duty of an equity court to “eliminate discriminatory effects 
of the past as well as bar like discrimination in the future.” 
Green, supra, 391 U.S. at 438, n. 4. Similarly well-estab­
lished remedial principles support the notion that an equity 
court ought to attempt a remedy for school segregation



76

created by sham and subterfuge which looks beyond the 
particular cases of proven illicit activity.

In enforcing the anti-trust laws the federal courts have, 
because of practical necessities of enforcement, ranged 
beyond the narrow area of proven violations and where 
necessary enjoined licit as well as illicit conduct in order 
to enforce the law. See, e.g., United States Gypsum Co. v. 
National Gypsum Co., 352 U.S. 457 (1957); United States 
v. Bausch & Bomb Optical Co., 321 U.S. 707, 724 (1944); 
United States v. U.S. Gypsum Co., 340 U.S. 76 (1950) ; 
International Salt Co. v. United States, 332 U.S. 392 (1947); 
Los Angeles Local 626 v. United States, 371 U.S. 94 (1962); 
United States v. Aluminum Company of America, 148 F.2d 
416 (2nd Cir. 1945) (opinion by Judge Learned Hand).

The practical necessity of a district-wide approach to 
school segregation in Denver stems from various aspects of 
the situation. One aspect is the presence in the school 
system of the large Hispano minority group. It is necessary 
to avoid a remedy for segregation against blacks which 
disadvantages Hispano. The problem is obvious consider­
ing the fact that the dominant Anglo community can remain 
separated from blacks either by keeping blacks in all-black 
schools or keeping them in Black-Hispano schools. The 
current existence of a number of Black-Hispano schools 
where the pattern of inequality of educational opportunity 
is identical to that in all black schools is discussed below 
in Part II-C. A piecemeal approach to correcting the con­
stitutional violations caused by deliberate discrimination 
might either aggravate the segregation of blacks and His- 
panos or lead to the segregation of Hispanos in all-Hispano 
schools.

Another problem of a remedy without a system-wide 
perspective is to avoid steps which tend to create or en­
courage white citizens to change their schools to remain



77

segregated. Planning with a system-wide perspective can 
attempt to deal fairly with all groups and segments in the 
community and attempt to insure that any remedy is one 
with some chance of permanent impact.

Covert segregation practices in the past have obviously 
set in motion community responses. On the simplest level 
where a school is designated as a black school this may 
often cause various types of responses by whites to avoid 
the school thus designed as a black school. Furthermore, 
the systematic segregation of blacks in schools outside the 
older black areas demonstrates to blacks living in the older 
core areas the futility of seeking to escape school segre­
gation by moving. Mrs. Palicia Lewis, a black parent, 
testified about her family’s move from the predominantly 
minority Ebert in the central city to the Smith area in 
Northeast Denver at a time when Smith was integrated. 
As Smith became crowded and predominantly black, she 
and other Smith parents were offered the choice of accept­
ing mobile classrooms at Smith to contain the new black 
pupils moving into the area or being bussed—possibly back 
to Ebert from which she had just moved. A. 691a-697a. 
The Northeast Denver segregation policy inevitably affected 
black people in the core city area. It gave them a signal 
that they would be in segregated schools no matter where 
they lived in Denver.

Only a systematic approach involving many schools can 
undertake to eliminate the racial identifiability of a few 
schools. See, for example, the large number of Anglo 
schools involved in the Resolution 1531 (A. 60a) plan to 
desegregate a few black schools. We should also point out 
that the fact that Resolutions 1520, 1524 and 1531 did not 
address the entire school system, reflects only that when 
the board was planning for integration it did so on a step- 
by-step basis. The board’s Noel Resolution contemplated



78

“a comprehensive plan for the integration of the Denver 
Public Schools” (A. 1991a), and Superintendent Gilberts’ 
responsive submission “Planning Quality Education” (DX- 
D; excerpts at A. 2128a, et seq.) envisioned an approach 
which would comprehensively address the problems of the 
entire school district. Resolutions 1520, 1524 and 1531 were 
the first three beginning steps in the overall process of 
designing a plan for integrating the Denver schools. A. 
227a-239a.

Moreover, a system-wide approach is necessary in view 
of the need for a desegregation plan which also operates to 
relieve the problems of inequality in the provisions of 
resources to minority schools (see Argument II, infra). 
Such problems as high teacher turnover and low teacher 
experience in segregated schools as well as the concentra­
tion of minority teachers in minority schools are all prob­
lems which suggest that a district-wide remedial plan is 
necessary and appropriate.

We submit that the court of appeals erred in reversing 
those parts of the district court’s final decree which did 
not relate specifically to schools where there was a finding 
of deliberate illicit acts. A. rule of law limiting the remedy 
for school segregation to only those schools in a system 
where specific illicit acts are proved is so impractical as 
to promise no real reform of segregated situations. Such 
a limited remedy is comparable to the long-rejected argu­
ments in dual school systems that courts were empowered 
only to grant relief to individual named plaintiffs who 
sued for admission to specific white schools. If such a 
rule of law had prevailed, segregation would still be the 
way of life in southern school systems. That dual systems 
have been considerably alleviated is due to the practical 
approach mandated by Green v. County School Board, 
391 U.S. 430 (1968). Only a similar practical approach



79

can have any appreciable impact on segregation accom­
plished by surreptitious and underhanded practices.

B. Unlawful Segregation in Denver Is Even More Extensive 
Than the Courts Below Recognized.

The decisions of the courts below actually understate 
the extent of the unlawful racial segregation shown on 
this record to have been accomplished by decisions of the 
Denver school authorities. The courts below erred by 
giving the wrong legal significance to discriminatory acts 
of the board which occurred prior to the Brown decision, 
and also by excusing some discriminatory actions on the 
ground that plaintiffs failed to show that the past dis­
criminatory conduct was the cause of present segregated 
patterns.

Plaintiffs’ position is not based on a challenge to the 
particulars of the district court’s fact finding. Rather, we 
challenge a few of the mixed factual and legal conclusions 
(or middle level facts) which are determinative of the 
constitutional issue. We invoke the principle that this 
Court makes its own independent examination of a record 
to insure that federal rights are not lost because of dis­
torted fact-finding, or fact-finding influenced or induced 
by erroneous principles of law. Haynes v. Washington, 
373 U.S. 503, 515-517 (1963); Spano v. New York, 360 
U.S. 315, 316 (1959); Stein v. New York, 346 U.S. 156, 181 
(1953).85 86 We submit that such legal errors plainly affected 
the decision that certain segregation in Denver was lawful.

85 See Oyama v. California, 332 U.S. 633, 636 (1948) :
“In  approaching cases, such as this one, in which federal 

constitutional rights are asserted, it is incumbent on us to 
inquire not merely whether those rights have been denied in 
express terms, but also whether they have been denied in sub­
stance and effect. We must review independently both the 
legal issues and those factual m atters with which they are 
commingled.”



80

Manual Training High School is the capstone of 
Denver’s segregated pattern. The evidence that New 
Manual was earmarked for black students when it was 
opened in 1953 is overwhelming. It comes from the mouths 
and documents of the school officials. See, e.g., PX-356; 
excerpts at A. 2086a. See Statement, supra, pp. 22-24. 
Former Superintendent Oberholtzer’s testimony about the 
planning for New Manual makes the point:

Q. Was there any doubt in your mind that, when 
new Manual opened, Doctor, it would be predominantly 
minority in its composition! A. It appeared to be
so at that time, yes.

# * # #
Q. Now, did you consider what might happen to the 

racial composition of new Manual in the event you 
had built it larger, for example, during the planning- 
stages for new [2030] Manual! A. Eacial factors 
and ethnic factors were not a part of our consideration 
in the construction or location of schools.

Q. And I take it your answer is the same with 
regard to a possible change in the boundary between 
what has been that for old Manual and that for new 
Manual! A. I  would give you the same answer.

Q. Well, you’re not telling me, are you, Doctor, 
that you were in fact, when you built Manual, building 
a separate but equal school, are you? A. I don’t 
know the import of this question.

The Court: What he’s asking you is, just so I 
think you will be aware, is whether this was built 
to be a Negro school and planned as such, although 
you were determined, undoubtedly, to give it equal 
facilities. That’s the essence of what he’s asking 
you.

Mr. Greiner: That’s correct.



81

A. We were again building a school to house the 
children of that particular area, and there was, as you 
have said, a high percentage of Negro pupils in that 
area, yes.

Q. Well, for example, the whole curriculum at 
Manual was tailored, was it not, for these minority 
students? A. It was tailored to the students who 
were attending [2031] that school, yes.

Q. And those were minority students. You don’t 
deny that, do you? A. No, I’m not denying it. 
(A. 1406a-1407a).

See also similar testimony at A. 1404a-1405a.
The evidence about the subsequent boundary changes 

at Manual, about the optional zones, about the capacity 
utilization of Manual and East and about the curriculum 
at Manual “tailored for minority students” is all set out 
in great detail in other parts of this Brief and will not 
be repeated here. See pp. 22-24, 29-30, 31, 33-35 supra. 
Manual has at all relevant times been the black high school 
in Denver.86

The district court’s ruling on plaintiffs’ contentions 
about Manual was that (1) it was opened prior to the 
Brown decision, the location had the consent of the people 
in the neighborhood and at that time there was “much 
less concern about minority concentration” (313 F. Supp.

86 In  1946-47, Old Manual had 86% of the City’s black high school 
students and in 1968-69 it enrolled 49% of the black high school 
students. In 1947-48 the black students were 2.9% of the high 
school population in the District and the black students at Manual 
were 23% of the total. In  1968-69, black students were 12% of the 
high school population and the black students at Manual were 76% 
of the total. See PX  336, A. 2084a and P X  302, A. 2078a. In 1949, 
Manual became the first Denver high school to have a Negro 
teacher. PX  410, A. 2106a. In  1968-69, Manual had 25 of the 44 
Negro high school teachers. PX  275, A. 2075a.



82

at 69-70); and (2) the 1956 boundary changes at Manual 
cut off the option of some blacks at Manual to attend East 
and was resisted by the black community which proposed 
changes that would integrate Manual, but this integration 
“would have been temporary only because in a few years 
this neighborhood became Negro” 313 F. Supp. at 70. 
The court made no finding that the decisions about locat­
ing Manual or changing its boundaries were rational, 
neutral or legitimate. It merely said plaintiffs did not 
show the “acts were clearly racially motivated” and that 
much of the black population concentration in the area 
occurred in later years between 1963 and 1968.

The district court restated the first point listed above 
elsewhere in the opinion:

It should also be kept in mind that prior to Brown 
v. Board of Education, supra, it was apparently taken 
for granted by everybody that the status quo, as far 
as the Negroes were concerned, should not be disturbed 
because this was the desire of the majority of the 
community. Time and again the Board members 
testified to the fact that in making decisions they held 
hearings and finally bowed to the community senti­
ment. Thus, they say they did not intend to segregate 
or refuse to integrate. They just found the consensus 
and followed it. 313 F. Supp. at 73.

We believe that this repeated reference by the court to 
the acceptance of racial decisions and racial concentration 
of Negroes in schools prior to Brown represented a confused 
and incorrect approach to the problem presented.87 The 
district court should have sought to determine whether the 
board intentionally made racial decisions and discriminated.

87 This aspect of the decision below is discussed in Comment, 
48 Denver L. J. 417 (1972).



Instead, the court seems satisfied that the hoard did not 
intentionally violate the “law of the land” prior to Brown 
when “there was much less concern about minority concen­
tration.” 313 F. Supp. at 70. This kind of approach would 
not even have desegregated a southern dual system.

The district court’s finding of no racial motivation with 
regard to the establishment of Manual is explicable only 
in terms of this kind of legal error. The trial court reached 
precisely the opposite conclusion on substantially similar— 
perhaps weaker—facts with respect to the 1959 establish­
ment of Barrett. The establishment of Barrett was seen 
by the trial court as plainly unlawful because it occurred 
after the Brown decision. See 303 F. Supp. at 284-285. The 
establishment of Barrett may have been more blameworthy 
than the establishment of Manual because one occurred 
before and the other after Brown. But both cases involved 
the establishment of a school designed to fit a racial popu­
lation group and planned to be segregated. Both are in 
“the classic pattern of building schools specifically intended 
for Negro or white students.” Swann v. Board of Educa­
tion, 402 U.S. 1, 21 (1971). Both are equally unlawf ul under 
Brown.

The district court’s other point about Manual boundary 
decisions not causing segregation reflects another error of 
law. It seems clear that there was no rational neutral 
justification for the 1956 Manual-East boundary changes 
and the district court found none. (The same boundary 
changes applied to Cole and Smiley Junior High Schools 
and the board’s explanation in that case that it was related 
to the new Hill Junior High School was found by the dis­
trict court to be false. 313 F. Supp. at 71, n. 14.) The 
district court found that the Manual boundaries followed 
the black population and that alternatives proposed by the



84

black community but rejected by the board would have 
alleviated crowding at East while desegregating Manual. 
313 F. Supp. at 70. However, the court found that assigning 
a white neighborhood to the Manual zone would have had 
an integrating effect at Manual but it “would have been 
temporary only because in a few years this neighborhood 
became Negro.” 313 F. Supp. at 70.

The court’s reasoning ignores the effect of such boundary 
decisions and decisions to designate a school as black on 
neighborhood residential patterns. Schools decisions change 
neighborhoods. This Court pointed out in Swann v. Board 
of Education, 402 U.S. 1, 21 (1972), the interrelationship 
between school establishment decisions and neighborhood 
patterns, and that a segregation policy “may well promote 
segregated residential patterns which, when combined with 
‘neighborhood zoning’, further lock the school system into 
the mold of separation of the races.”

The United States Commission on Civil Rights has ob­
served the same relationship. PX-27, Racial Isolation in 
the Public Schools, A Report of the IT. S. Commission on 
Civil Rights, 1967. Plaintiffs’ expert Dr. Dodson testified 
about the phenomenon of school policies being a major 
cause of housing segregation:

. . .  I would also say that policies of schools become 
a factor, too. I was in a case in Little Rock, Arkansas, 
in the federal court on desegregation and here the 
board’s policy of ringing off their school and the next 
one to it as the neighborhood expanded as being black 
schools and so on, meant that the housing arrangement 
—the schools’ policies created segregated patterns 
within the city itself and was the major contribution 
to the segregation within the residential pattern of 
living. A. 1505a



85

See also A. 1490a-1491a. The experience of various black 
Denver residents who testified at the trial confirmed aspects 
of the interrelationship between school segregation and 
housing segregation.88 A policy of establishing* segregated 
schools in neighborhoods where blacks move in, does more 
than encourage whites to move out—the familiar white 
flight pattern. Such segregation also demonstrates to blacks 
that wherever they move they will be segregated and 
tends to further impact segregation in established black 
residential areas.

This relationship is also the answer to the district court’s 
reliance on the fact that the Negro population at Manual 
and Cole increased over 20 percent between 1963 and 1968 
—long after the boundary changes and during a period 
when the board wTas engaged only in inaction with respect 
to those schools. Cole and Manual were firmly established 
and identified as the secondary schools in Denver for 
Negroes as early as 1947 when blacks were still in the 
minority (PX 336, A. 2084a). The decisions in 1956 in­
sured that they would become predominantly Negro as 
well as have a concentration of Negroes. It can be no de­
fense for the board’s discriminatory action in 1956 that this 
process did not culminate in a majority Negro school for 
a number of years. It is enough that the likely effect of

88 See testimony of Mrs. Palicia Lewis, A. 691a-697a; testimony 
of Senator George Brown, A. 871a-876a; testimony of Mrs. Rachel 
Noel, A. 85a-88a. As we have described above in the text a t p. 77 
Mrs. Lewis found that moving out of the core city to an integrated 
area provided only temporary integration, since the board offered 
a choice of accepting mobile units at the integrated schools—which 
tended to segregate it—or accepting busing back to the core city. 
Senator Brown found that his move to a white area, followed by 
other blacks, was accompanied by a board decision removing the 
option of his children to attend a white school and including them 
in the mandatory area of Manual and Cole. Mrs. Rachel Noel found 
that living in the area where her child was bused to Anglo schools 
in Park Hill provided only temporary integration as B arrett School 
was constructed with the result her child was resegregated.



8 6

the board’s discrimination would be to set such a process 
in motion and that there is no showing by the board that 
current segregation is not the product of its past dis­
crimination. Cf. Swann v. Board of Education, 402 U.S. 1 
26 (1971).

Finally, of course, the position that a nonracial integra­
tive step of adding Northeast Denver areas, which were 
then Anglo, to Manual in 1956 would have been futile, 
ignores the district court’s other findings about what did 
occur in Park Hill. The very school areas which might 
have been added to Manual to integrate it are the same 
Northeast Denver areas—the corridor of black population 
movement to the east, served by such schools as Barrett, 
Stedman and Hallett. These are the very areas where 
other discriminatory action by the board occurred. We 
can only speculate about what pattern the black population 
movement in Northeast Denver would have taken if there 
had been no policy of racial containment and separation 
in the school system. But surely any uncertainty in this 
regard must be resolved against the discriminators. It is 
the board’s burden to prove that its discriminatory action 
did not have the intended effect and cause the existing 
segregated situation. The district court’s decision mis­
placed the burden of proof on the issue of the cause of 
segregation. It should have followed a rule similar to that 
in Swann v. Board of Education, 402 U.S. 1, 26 (1971), 
which places the burden on school boards dismantling dual 
systems to show that any schools that are substantially 
disproportionate in their racial composition are not the 
result of present or past discriminatory action on their 
part. A similar burden ought to be placed on a school 
board shown to have engaged in some covert segregating 
with respect to each and every act of discrimination.

Another pervasive error by the court of appeals is the 
fact that the court gives no weight to the fact that the



87

Denver system engaged in a policy of assigning minority 
teachers only to minority schools for many years, and 
continued up to the time of the lawsuit to concentrate 
minority teachers in schools with minority pupils. Faculty 
segregation is an obvious means by which the white and 
black schools were identified as such. Courts have used the 
fact of a pattern of racial discrimination in teacher assign­
ment as a telling point in showing an identification of some 
schools as black schools. Swann v. Board of Education, 402 
U.S. 1, 18 (1971); see, e.g., Spangler v. Pasadena Board of 
Education, 311 F. Supp. 501, 513-517 (C.D. Cal. 1970); 
Davis v. School District of Pontiac, 309 F. Supp. 734, 743- 
744 (E.D. Mich. 1970), affirmed, 433 F.2d 573 (6th Cir. 
1971), cert, denied, 404 U.S. 913 (1971); United States v. 
School District 151, 301 F. Supp. 201, 228 (N.D. 111. 1969), 
ajf’d, 432 F.2d 1147 (7th Cir. 1970), cert, denied, 402 U.S. 
943 (1971). The Tenth Circuit’s excusing of faculty as­
signments by race, because it was based on ‘‘the prevailing 
educational theory of the day that Negro pupils related 
more thoroughly with Negro teachers,” 89 simply does not 
alter the fact that the practice served to racially identify 
the schools. The appeals court reasoning also ignores the 
trial court’s finding that the faculty assignment policy was 
based on resistance of whites to minority teachers in white 
schools. 303 F. Supp. at 284-285.

C. Petitioners Proved a Prima Facie Case of Unlawful Racial 
Segregation, But the Courts Below Incorrectly Defined the 
Burden of Proving Constitutionally Actionable School 
Segregation.

As this Court recognized in Swann v. Board of Educa­
tion, 402 U.S. 1, it is school officials who by their decisions 
about a variety of matters control the racial composition of 
the schools:

89 4 45 F.2d at 1007.



The construction of new schools and closing of old 
ones is one of the most important functions of local 
school authorities and one of the most complex. They 
must decide questions of location and capacity in light 
of population growth, finances, land values, site avail­
ability, through an almost endless list of factors to be 
considered. The result of this will be a decision which, 
when combined with one technique or another of stu­
dent assignment, will determine the racial composition 
of the student body in each school in the system. Over 
the long run, the consequences of the choices will be 
far reaching. People gravitate toward school facilities, 
just as schools are located in response to the needs 
of people. The location of schools may thus influence 
the patterns of residential development of a metro­
politan area and have important impact on composition 
of inner-city neighborhoods. 402 U.S. at 20-21; em­
phasis added.

The record in the Denver case illustrates the general 
proposition recognized in Swann that the multiplicity of 
decisions made in planning and operating school systems 
have racial effects—and that those racial effects are gener­
ally predictable. The Denver record shows also that the 
board has achieved one uniform result by its actions; they 
have minimized integration and maximized the separation 
of black pupils from white pupils. We urge that this proved 
a prima facie case of unconstitutional segregation. It is 
entirely unworldly to suppose that a board which has been 
caught making a number of decisions which are explicable 
only as subterfuge for racial segregation (See Part I-A, 
supra) made all of its other decisions in a color-blind fash­
ion. The fact is that the district court did not find more 
instances of discrimination simply because whenever there 
was more than one possible explanation for a decision, the



89

district court gave the board credit for the nonracial ones. 
But obviously the board was consistently discriminating; 
the difference from decision to decision is only that, as to 
some, they could get away with discriminating by reason 
of the availability of possible nonracial explanations. As 
complex as school system management is, a school board 
can almost always find a post-facto justification for its 
decisions on some rational basis. It is amazing that peti­
tioners were able to establish a few cases of discrimination 
so blatant, and school management so distorted by racial 
considerations that the board could not present any con­
vincing rational explanation. Plaintiffs will seldom, per­
haps never, be able to make such a showing for every school 
in a system with a covert segregation policy.

We submit that at least in a case where the court has 
found some racially discriminatory factors and practices 
in a system, and there is a general pattern of racial separa­
tion consistent with discrimination, the burden must shift 
to the school authorities to explain the segregation not 
merely by the availability of some rational explanation, 
but by a compelling state interest, which could not be 
served by less segregatory practices.90

In many other types of race discrimination cases—such 
as, for example, jury discrimination eases—it is accepted 
doctrine that a certain type of showing of discriminatory 
results is sufficient to shift the burden to a defendant to 
establish some compelling state interest sufficiently substan­
tial to negate the presumption of discrimination. What­
ever may be the precise type of showing of such proof 
needed in a school case where there is no proof of intent, 
certainly in a ease like Denver where the fact of segregatory

90 See Dimond, School Segregation in the North: There is hut One 
Constitution, 7 H arvard Civil Rights-Civil Liberties Law Review 1 
(1972).



90

intent has been found, then the burden of proof ought to 
shift to the defendants to explain conduct having a dis­
criminatory result consistent with the pattern of inten­
tional discrimination already found.

The court of appeals’ response to plaintiffs’ argument 
was that it would be incongruous to require the school 
board to prove the non-existence of an illicit intent and 
that in southern school disestablishment cases there was 
merely a burden to show conversion to a unitary system. 
445 F.2d at 1005. The court said that such an “onerous 
burden does not fall on school boards who have not been 
proved to have acted with segregatory intent.” Ibid. In 
the first place, this ignores that Denver was found to have 
bad segregatory intent. In the second place, it fails to focus 
on the burden which plaintiffs’ prima facie case would 
place on the board which would be the burden of showing 
a compelling state interest justifying the segregatory re­
sult rather than a burden of proving some secret state 
of mind.

The board might attempt to satisfy the burden of re­
butting a prima facie case by various showings including 
reference to its neighborhood school policy. But the neigh­
borhood school policy is certainly not an automatic justi­
fication for segregation, considering the impact of school 
segregation on neighborhood segregation and other fac­
tors. Swann v. Board of Education, 402 ILS. 1 (1971).

School board decisions constantly define the neighbor­
hood served by any school. The range of opportunities for 
control by various mechanisms has been demonstrated on 
this record and described in the Statement, supra at pp. 18, 
et seq. With such a broad range of controls and the readily 
availability of post facto explanations for segregation, a 
rule which focuses the test of constitutionally actionable



91

segregation on proving that conduct is a sham to hide il­
licit motives, will not go far to remedy the evil of covert 
school segregation. Such an approach fails to recognize 
that “patterns of racial discrimination are entrenched 
throughout this country,” that “all school segregation is 
largely traceable to such racial discrimination,” and that 
“dominant white majorities everywhere are hostile to as­
sociation with blacks, especially in schools and residential 
neighborhoods.” Dimond, School Segregation in the North: 
There Is hut One Constitution, 7 Harvard Civil Rights- 
Civil Liberties Law Review 1, 4-5 (1972). The record in 
this case discloses that no compelling state interest was 
present to justify the pervasive pattern of segregation in 
Denver. There certainly was no showing of any justifica­
tion for the complained of acts at Manual High School 
and Cole Junior High—the pivotal black schools in the 
core city area—and the district court found none. A con­
clusion that segregation was also actionable at Manual and 
Cole91 ought inevitably to lead to system-wide relief be­
cause these important schools have a history of a feeder 
relationship with the all-black elementary schools in the 
core city area. Beyond these particulars the proof of a 
prima facie case of covert discrimination should place on 
the school board the same burden Swann places on a board 
which asserts it has dismantled a dual system. The board 
should bear the burden of justifying racially dispropor­
tionate schools. Denver school officials have the means

91 I t  is of course true that segregation at Cole was found action­
able by the district court because of the recission of the 1969 reso­
lutions. The court of appeals affirms relief aimed at desegregating 
Cole even though it is not clear what its theory is since its opinion 
states the court does not reach the issue of whether the recission 
was unconstitutional. 445 F.2d 999, 1002. This points up the incon­
sistent results which are inevitable under a pieeemeal approach to 
a system-wide problem. Also, finding segregation actionable at Cole 
and lawful at Manual produces an incongruous and anomalous 
result which ignores the historic relationship of these two schools.



92

readily available to desegregate every school in the sys­
tem. This can be accomplished by the same type of con­
trol of the racial composition of schools which has brought 
about the present segregated system. The board made no 
showing to justify maintaining the segregated system 
created in Denver by racially discriminatory actions of 
public officials.

II.

D e n v e r’s S ystem atic  D isp a ra te  a n d  D isc rim in a to ry  E d ­
u c a tio n a l T re a tm e n t of M in o rities  V io lates E q u a l P ro ­
te c tio n  a n d  E n title s  P e tit io n e rs  to  System -W ide R e lie f.

The record in this case discloses a continuous disregard 
of the known result of respondents’ education policy and 
practices—the unequal provision of educational opportu­
nity to Denver’s minority children.

In Part II-A-1 of this Brief we submit that the evidence 
and the findings of the respondents’ system-wide and con­
tinuously disparate treatment of minorities in the effectua­
tion of educational policies and practices, resulting in what 
amounts to a segregated and unequal educational caste 
system for Negroes and Hispanos violates the Equal Pro­
tection Clause.

In Part II-A-2 of this Brief we assert that the trial 
court’s conclusion of equal protection violation was clearly 
correct under the law. In reversing, we respectfully urge 
that the Tenth Circuit misconstrued the basis of the trial 
court’s conclusions, and more importantly, erred in its 
perceptions of the standards of equal protection appro­
priate to this case. The result of these errors, we main­
tain, is to wrongly deny the equal protection of the laws 
to Denver’s black and Hispano school children by con­
doning, in the name of “neighborhood schools” the con­
tinuous, unequal provision of public education to them.



93

In Part II-B of this Brief, we support the trial court’s 
remedial aproaeh to these educational disparities as being 
well within the bounds of proper judicial discretion and 
equitably appropriate to eliminate the violation prospec­
tively while attempting to cure the injury already inflicted.

In Part II-C of this Brief we contend that while the 
trial court’s remedy was proper, it was improperly with­
held from certain other predominantly minority schools 
equally afflicted with inequality, and urge that relief be 
extended to these schools.

A. Denver’s Disparate, Unequal Treatment of Minorities in 
the Provision of Public Education Violates Equal Pro­
tection.

1. The Evidence and Findings Below Demonstrate That 
in Denver M inority Children W ere Consciously Treated 
Differently and Discrim inatorily by Respondents’ Pol­
icies and Practices W hen Compared to Anglo Children.

The record is replete with a panoply of actions and de­
cisions of the District wherein racial considerations re­
sulted in the disparate educational treatment of minority 
children. To summarize:

The following educationally-relevant matters were 
wholly within the control of respondents:

(1) The initial assignment of minority teachers.—The 
minority schools always ended up with concentra­
tions of minority teachers; in the face of announced 
contrary policy from 1964 on concentration in some 
minority schools actually increased.92 Thus the as­
signment of Negro teachers to Anglo schools was 
treated differently than their assignment to Negro 
schools or the assignment of Anglo teachers to any

92 See pp. 11-12; 19-20, supra.



94

school. The accelerated dispersal of minority 
teachers to Anglo schools coincided with the bring­
ing of this lawsuit.93

(2) The initial assignment of teachers.—The adminis­
tration was aware of the level of teacher inexperi­
ence in the minority schools; it purported to hire 
only teachers ready and willing to serve in the 
core city schools; of the teachers new to the Denver 
system, they asserted that a high proportion came 
with experience from other systems.94 But respon­
dents failed to show, although they had recourse to 
records which could have demonstrated, if true, 
that these teachers with prior experience were as­
signed to the minority schools.

(3) The transfer of teachers between schools.—While 
the administration had the power to initiate, ap­
prove or disapprove requests for transfer on the 
grounds that they were not in the best interests of 
the District, they never exercised this power to 
improve the quality of faculty in the minority 
schools.95

(4) Teacher turnover.—In 1966 the District abandoned 
the only policy then in existence which helped 
alleviate turnover in the minority schools—the pol­
icy that new teachers were expected to serve their 
3-year probationary period in the school to which 
they were initially assigned.96 The administration 
also abstained from any effort directed toward en­
couraging teachers to stay in the minority schools.97 
It was content to let nature take its course.

93 DX-DA, A. 2143a.
94 Johnson, A. 331a-34a, 337a-38a. DX-DB, A. 2144a.
96 P X  26; DX-E ; Johnson, A. 322a-23a.
96 PX  26; DX-E ; Johnson, A. 320a-21a.
97 Johnson, A. 320a-21a.



95

(5) Achievement expectancies.—The administration es­
tablished low expectancies for the minority chil­
dren at these schools and then both concealed and 
praised the expected poor results of this prophecy, 
while it established high expectancies for Anglo 
schools.98

(6) Performance and course content standards.—The 
administration at least condoned if not encouraged 
lower standards of performance and course content 
in the minority schools.99

(7) Career expectancy.—The administration acted upon 
and enforced an expectancy that minority children 
would not be going on to higher education, thus 
directing them into semi-skilled vocational educa­
tion and out of college preparatory courses.100

(8) Location of schools, boundary changes.—While in 
selecting the site of schools exclusively for Anglos, 
the administration and the board were guided only 
by educational considerations, where race was a 
factor educational considerations were subordinated 
to political pressures and majority will. Similarly, 
boundary changes were influenced by racial and 
political considerations rather than the consistent 
application of such neutral criteria as building 
capacity, distance, availability of transportation, 
growth projections, etc. When faced with choices 
between integration and segregation, the board, 
knowing in advance what the result would be, 
“searched” for the consensus and then followed

98 See pp. 49-53, supra.

99 See PX  356, A. 2086a; Oberholtzer, A. 1406a-07a.
100 PX  356, A. 2086a.



96

it.101 That public hearings were not intended to 
develop operative facts is demonstrated by Mr. 
Traylor’s testimony about the board’s intransi­
gence about the facts of the administration’s Man­
ual and Cole boundary change proposals in 1956.102 103

(9) Transportation of students and deployment of mo­
bile units.—When Anglos were brought into the 
District by annexation, the District did not take 
the nearest existing school and add mobile units 
to it to accommodate these children, but rather, 
transported them clear across town to other An­
glo schools with available space, often directly past 
minority schools with available space. However, 
where minority enrollment increased within the 
attendance area of an existing minority school, 
these minority children were not accommodated by 
being transported to these Anglo schools where 
space was available, but rather, were consistently 
confined in mobile units at the nearest existing 
minority school.108 When new Anglo schools were 
opened creating spaces in the former Anglo re­
ceiving schools, minority students were kept in 
these mobile units rather than being transported 
to the Anglo receiving schools—all of these events 
occurred after February, 1966104 when the board 
officially endorsed transportation to relieve over­
crowding.105

(10) Transporting students.—When Anglos were trans­
ported to receiving schools, either to relieve over­

101 313 F. Supp. at 73. See pp. 16 ; 31-32, supra; Mrs. Johnson A 
928a-29a; A. 932a-33a.

102 See pp. 29-31, supra.
103 See pp. 24-27, supra.
104 Johnson, A. 361a; PX  29; Johnson, A. 362a-66a.
105 Bardwell, A. 770a-71a, A. 773a-75a; P X  390-B.



97

crowding or to furnish, new students with a school, 
each receiving school was filled to rated capacity 
or more before the next was utilized. In the few 
instances when minority students were transported 
they were brought into each Anglo receiving school 
in very small numbers, completely unrelated and 
disproportionate to the number of openings at 
the Anglo school.106

(11) The “Neighborhood School Policy.”—Before the 
minorities began their expansion out of the core 
city there were so many attendance options avail­
able to students through optional zones and per­
missive transfer policies as to cast doubt as to 
whether there was a policy of “neighborhood 
schools.” Optional zones were not considered by 
the administration as controlling devices for ca­
pacity utilization, but rather, as a |jolitic acqui­
escence in parental choice.107 Yet these zones per­
sisted, particularly in transition areas such as 
between Cole and Smiley, Manual and East, until 
finally publicly denounced by the Voorhees Report. 
But they were immediately replaced in 1964 by 
LOE which accommodated white flight just as ex­
peditiously.108 When VOE was finally implemented 
in January, 1969, LOE was not cancelled; students 
enrolled in the LOE program were allowed to con­
tinue, and some are still continuing today.109

106 Bar dwell, A. 769a-76a; PX  390, 390-A, 390-B.
107 See pp. 31-32, supra; A. 1422a-23a.
108 See pp. 32-33, supra.
109 Thus a hypothetical Anglo child living in the Smith Elemen­

tary  district in 1968 could have transferred to all-white Fallis and 
gone into and remained in that predominately Anglo system of 
feeder schools, Fallis, Place Junior High and George Washington 
High.



98

(12) School capacity.—The administration applied dif­
ferent capacity criteria, depending upon whether 
the school was predominately Anglo or predomi­
nately minority. Under this policy, Anglo schools 
were not considered overcapacity until their enroll­
ments exceeded 120% of rated capacity, whereas 
minority schools were considered fully utilized when 
at less than 80% capacity.110 It was this double 
standard which the administration used to justify 
busing Anglos past minority schools which were 
under their rated capacity.111 112 The double standard 
also was employed in the administration’s rejection 
of using available space in minority schools to re­
lieve adjacent overcrowded Anglo schools.113 The 
capstone of its employment was the building of 
Anglo schools in new areas while ignoring space 
in existing minority schools, thus further entrench­
ing segregation in both schools and neighbor­
hoods.113

(13) “Long range” and “short range” planning.—The ad­
ministration inconsistently applied planning criteria 
when race was a consideration. The respondents’ 
defense of their decisions regarding the 1956 
boundary changes at Cole and Manual are entirely 
inconsistent with the criteria they employed to jus­
tify the size and attendance boundaries of Barrett.

Mrs. Lois Johnson114 stated that in 1955 adminis-

110 Oberholtzer, A. 1409a-10a; see pp. 24-26, supra.
111 PX  3(90, 390-A, 390-B; Bardwell, A. 765a; Armstrong, A. 

1263a-70a.
112 See pp, 26-27, supra.
113 PX  273, 346, 347 ; Bardwell, A. 757a-65a.
114 I t  may be recalled that Mrs. Johnson served on the board from 

1951 through 1963; in 1962 and 1963 she was the President of the 
Board. A. 896a.



99

tration projections were that Manual and Cole, both 
then substantially under capacity, would not reach 
their capacity until 1960, In contrast, the projec­
tions showed that both East and Smiley, then al­
ready at capacity, would be at nearly 170% of ca­
pacity by 1960. According to Mrs. Johnson the 
District was strapped for funds and “[W]e were in 
a very difficult situation to have enough classrooms 
for all the incoming children.” A. 900a. Neverthe­
less, in refusing to move the Cole and Manual boun­
daries to accommodate the expected overcrowding 
at Smiley and East the board consciously refused to 
utilize the space available at Cole and Manual, 
rejecting the alternative as being too short term.

Yet, when Barrett was being considered the popu­
lation was also growing just east, across Colorado 
Boulevard. Rather than reflect the long-term pro­
jections by making Barrett large enough to accom­
modate the increase, the board here embraced a 
short-term solution,115 consciously building for only 
the immediate needs of the small Barrett “neighbor­
hood,” and refusing to accommodate Anglos over­
crowded in adjacent Stedman.

In these two instances, both occurring in a span 
of but two years, the board was willing to use totally 
inconsistent criteria. Only the result is consistent: 
the avoidance of sending Anglo children to Negro 
schools. As Mrs. Johnson put it: “We were not 
building with integration as our idea, of course.” 
A. 937a.

(14) Adherence to “Neighborhood Schools.”—The re­
spondents maintain that throughout the twenty-two 
year period preceding this suit, they were simply 116

116 Mrs. Johnson, A. 912a.



100

administering a neutral “color blind” policy of 
neighborhood schools. We will ignore arguendo the 
doubt which the combination of the thirteen factors 
discussed above must cast on that contention. 
Taking the assertion at face value, the school ad­
ministration, with the political complicity of the 
board, has continued to insist upon neighborhood 
schools imposed upon segregated housing patterns, 
even though it was consciously aware of 
—the racial results in the schools created by the 
policy;116
—the inferiority of these schools, whether measured 
by inputs or results;117
—the increase in the number of inferior schools 
and in the number of minority children exposed to 
and confined in them ;118
—the failure of segregated compensatory programs 
to improve the schools.119

While acknowledging that historically public education 
in Denver and throughout the United States has taken 
(white) children from low socioeconomic areas, whose par­
ents were disadvantaged and managed to provide them 
with an education, the respondents point to these same 
factors as imposing a nearly absolute barrier to the edu­
cation of Negroes and Hispanos. It is clear that the school 
administration’s perceptions of and attitudes toward Ne­
groes and Hispanos is different than toward Anglos. This 
point was made perfectly in the following exchange be­
tween Mr. His and Dr. Dodson during cross-examination:

116 See pp. 47-50, supra.
117 See pp. 40-44; 48-50, supra.
118 Oberholtzer, A. 1393a-94a, A. 1402a-04a,
119 See pp. 61-62, supra.



101

Q. Now, with regard to the handicap, a child com­
ing from a family in a neighborhood and a lower 
socioeconomic status, you wouldn’t deny that those 
children are handicapped as compared to me, would 
you, before they ever get into [2221] school! A. I 
would deny that the experience that they have brought 
with them, the experience through which they have 
come by the time they are of school age, has so im­
paired their sensory mechanisms that they do not 
have the capacity to acquire and organize, experience 
in ways comparable to what you or I might have done 
at a comparable stage of our lives. I would be plant­
ing corn in East Texas today if teachers had seen 
the low socioeconomic status kid and the limitations 
of him and his inability to learn because he didn’t 
have all these things and had believed them.

Q. You aren’t alone in the courtroom in that regard. 
. . .  A. 1498a.

The district’s control and implementation of the pol­
icies enumerated above always achieved some result which 
discriminated against Denver’s minority students; the 
major results were that these children were assigned to 
and then confined in racially identifiable, isolated, inferior 
schools; educationally relevant matters such as teacher 
assignments, location of new schools and boundary changes 
were saddled with educationally irrelevant considerations 
such as the will of the majority community and its racial 
prejudices ; the perception of the minority student as some­
how different, and the establishment of lower standards 
and expectations for him created an educational caste 
system.

Even standing alone this discriminatory, conscious dif­
ference in respondent’s policies, practices, attitudes and 
perceptions relating to the education of minority children



102

for over twenty years constitutes a clear denial of equal 
protection based upon race and ethnicity, for it is exactly 
the type of invidious, disadvantaging discrimination at 
which the Fourteenth Amendment was directed. This 
distinctive and disparate racial treatment would violate 
equal protection even if the minorities were somehow 
able to overcome these obstacles and obtain educational 
results equal to Anglos: the creation of obstacles in and 
of itself denies equal protection.

But where as here the evidence and the trial court’s 
findings demonstrate that these obstacles in fact adversely 
affect the quality of education of minority children as 
measured by the educational result—low achievement and 
high dropout rates—the denial of equal protection is 
manifest.

Not only did the racially-disparate treatment of the mat­
ters enumerated above create obstacles for minority stu­
dents which were not imposed upon Anglos seeking effective 
education, but these obstacles actually resulted in the denial 
of an equal educational opportunity by the creation and 
perpetuation of inferior schools for Negroes and His- 
panos.

At the trial the inferiority of these schools was estab­
lished by every conceivable means, some of which have al­
ready been alluded to above: traditional tangible educa­
tional inputs such as teacher experience and stability of 
teaching staff; administration-established expectancies as 
to the level of achievement and administration acceptance 
and condonation of the resulting low achievement; the age 
of school facilities.120

120 Evidence of the inequality of a less traditional input, a socio­
economically heterogeneous peer group in the school, was also con­
sidered and found to be inferior in these schools.



103

The inferiority extended to such intangible factors as 
the attitudes of the entire community, as well as of the 
minority community and the teachers and students in the 
schools, attitudes created by the segregated, racially iden­
tifiable character of the schools. The school’s racial isola­
tion also created feelings of low self esteem, political im­
potence, isolation and inferiority, both in the minority 
children and their parents.

Finally, the inferiority was reflected in the ultimate ed­
ucational product of the Denver Public Schools, the mi­
norities’ drastically low level of academic achievement and 
cruelly high level of dropouts.

The expert testimony concluded that the above factors 
demonstrated that these schools were affording an un­
equal educational opportunity to minority children, and 
that the primary reason for the inequality was the seg­
regated, racially-isolated and racially identifiable condition 
of the school.121 It was the segregated condition of the 
school which made it a place of “less choice” for parents, 
students and teachers, and “a symbol” of inferiority and 
impotency for the minority community. It was looked upon 
by the whole community as being inferior, and “this makes 
it indeed so.” 122 123

Thus, petitioners’ evidence of violation of the Equal 
Protection Clause was directed toward the factual estab­
lishment of three matters:

(1) The fact that an inequality existed between the 
educational opportunities128 offered to Denver’s mi­

121 See pp. 33-37, supra.
122 Dodson, A. 14-73a.
123 Petitioners have never claimed nor did the district court’s 

decision in any way rest upon some notion th a t educational oppor­
tunity  was solely related to, or demonstrated by, an equivalent 
performance by every student. Obviously students will have, on an



104

nority students when contrasted with that offered 
to majority students;

(2) The fact that the respondents’ actions were the re­
sponsible cause of the inequality;

(3) The fact that less discriminatory means were rea­
sonably available to respondents in their provision 
of educational opportunity, a matter not really con­
tested by respondents, whose position was that since 
their current system was not discriminatory, they 
should not be required to change it.

The trial court’s findings of fact sustained the peti­
tioners’ contentions on both of these contested issues.124

individual basis, different aptitudes and will perform, ideally, to 
the full extent of their varying- capabilities. W hat is significant 
about the tangible measure of output here, such as achievement test 
scores, is two things. First, they establish a consistent and syste­
matic differential between white schools and minority schools of 
such magnitude as to vitiate any suggestions tha t the observed pat­
tern is merely the result of the interplay of different individual 
capacities. Cf. Stell v. Savannah-Chatham Board of Education 318 
F.2d 425 (5th Cir. 1963), 333 F.2d 55 (5th Cir. 1964). Second, they 
confirm the testimony of petitioners’ expert witnesses that such seg­
regated schools characteristically produce educationally undesirable 
effects upon the children and the teachers and can be expected to 
adversely affect the educational opportunity afforded the students.

124 As to the fact of inequality:
Objectiv e  F actors:

‘‘Extensive and detailed evidence has been presented estab­
lishing the inferiority of plaintiffs’ target schools.” 313 F. 
Supp. at 77.

“The above material summarizes plaintiffs’ evidence and our 
findings as to the objective indicia of inequality at the schools 
for which they seek relief.” 313 F. Supp. a t 81.

S u bjective  F actors:
“ • • • [B]y the time a school becomes segregated it is looked 

upon by the whole community as being inferior.
“At this point the Negro community does not consider the 

segregated school as a legitimate institution for social and eco­
nomic advancement. Since the students do not feel that the



105

2. The Trial Court’s Determ ination of Violation Resulted  
From the P roper Application o f Equal Protection  
Principles.

In its determination of violation the trial court applied 
traditional equal protection analysis. It recognized, as did 
Brown,126 that education is a fundamental interest, the 
deprivation or impingement of which must be closely 
scrutinized. Further the trial court reasoned that where * 81

school is an effective aid in achieving their goal—acceptance 
and integration into the mainstream of American life—they are 
not motivated to learn. Furthermore, since the parents of these 
Negro students have similar feelings with respect to the seg­
regated school, they do not attem pt to motivate their children 
to learn. Teachers assigned to these schools are generally dis­
satisfied and try  to escape as soon as possible. Furthermore, 
teachers expect low achievement from students at segregated 
schools, and thus do little to stimulate higher performance.” 
313 F. Supp. at 81.

F in a lly :
“The evidence in the case at bar establishes, and we do find 

and conclude, that an equal educational opportunity is not 
being provided at the subject segregated schools within the dis­
trict. . . . The evidence establishes this beyond doubt.” 313 F. 
Supp. at 83.

As to the cause of the inequality:
“ . . . [W] e cannot ignore the overwhelming evidence to the effect 

that isolation or segregation per se is a substantial factor in 
producing unequal educational opportunity.” 313 F. Supp. at
81.

As to the respondents’ responsibility:
“Many factors contribute to the inferior status of these schools, 
but the predominate one appears to be the enforced isolation 
imposed in the name of neighborhood schools and housing pat­
terns,” 313 F. Supp. at 83.

125 “We must consider public education in the light of its full 
development and its present place in American life through­
out the nation. Only in this way can it be determined if seg­
regation in public schools deprives these plaintiffs of the equal 
protection of the laws.”

“In  these days it is doubtful that any child may reasonably be 
expected to succeed in life if  he is denied the opportunity of 
an education.” 347 U.S. 492, 493.



106

the impact of the deprivation fell upon the poor, and 
ethnic and racial minorities, a suspect classification was 
involved which also had traditionally triggered close ju­
dicial review and required strong justification by the State 
for its actions.126

The only justifications put forth by the respondents was 
their good faith (which the trial court held irrelevant in 
the face of the proven discriminatory result),127 the con­
venience and tradition128 of the neighborhood school policy 
and the majority community’s preference for the contin­
uation of that policy.129

The trial court apparently found in these proffered jus­
tifications no compelling state interest sufficient to excuse 
or justify the discriminatory result, and concluded that the 
petitioners were being denied equal protection of the laws 
in violation of the Fourteenth Amendment. 313 F. Supp. 
at 83.

We submit that the trial court was correct in concluding 
that this systematic deprivation of the minority’s right 
to equality of educational opportunity violated the Equal 
Protection Clause.

126 Citing Griffin v. Illinois, 351 TJ.S. 12 (1956) ; Douglas v. Cali­
fornia, 372 U.S. 353 (1963) ; Hobson v. Hansen, 269 F. Supp. 401, 
497 (D. D.C. 1967).

127 313 F. Supp. at 82, n. 25.
128 In  view of the numerous optional attendance zones surround­

ing Denver’s schools until 1964, and the absence of requirements for 
student transfers which existed for many years (Biddick, A. 697a- 
99a), one could question whether there was a tradition of “neigh­
borhood schools.”

129 A preference which persisted despite the findings of the two 
study committees that its continuation might result in the inequality 
of educational opportunity for the D istrict’s minority children. PX  
20, A. 1999a-2004a; PX  21, p. 36.



107

The whole basis of the Fourteenth Amendment histor­
ically -was to prevent the systematic disadvantaging of 
minorities. Thus the first Fourteenth Amendment cases 
to reach this Court held all racial classifications unconsti­
tutional: Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 
(1873); Strauder v. West Virginia, 100 U.S. 303 (1880).130

While the separate-but-equal doctrine diluted the main 
thrust of equal protection, it was premised upon failure to 
find inequality in the fact of separateness.

Subsequent decisions here relating to separate-but-equal 
education began an independent analysis to determine if 
there was inequality. Siveatt v. Painter, 339 U.S. 629 
(1950); McLaurin v. Oklahoma State Regents, 339 U.S. 
637 (1950).

This inquiry culminated in Brown, which found that 
racial classifications in public education inherently pro­
duced unequal educational opportunity.

130 Strauder v. West Virginia, considered a Negro’s plea of denial 
of equal protection. S trauder had been convicted of murder by a 
state court ju ry  in West Virginia. West Virginia law disqualified 
Negroes from service on either grand or petit juries. This Court 
declared that the Fourteenth Amendment should be “construed 
liberally to carry out the purpose of its framers.” 100 U.S. at 307. 
The court continued:

“W hat is this but declaring that the law in the States shall be 
the same for the black as for the white; that all persons, 
whether colored or white shall stand equal before the laws of 
the States, and, in regard to the colored race, for whose pro­
tection the Amendment was prim arily designed, that no dis­
crimination shall be made against them by law because of their 
color? The words of the Amendment, it is true, are prohibi­
tory, but they contain a necessary implication of a positive 
immunity, or right, most valuable to the colored race—the right 
to exemption from unfriendly legislation against them distinc­
tively as colored; exemption from legal discriminations, imply­
ing inferiority in civil society, lessening the security of their 
enjoyment of the rights which others enjoy, and discriminations 
which are steps towards reducing them to the condition of a 
subject race.” 100 U.S. a t 307-08.



108

More recently, the Court has sharpened its perception 
of illegal discrimination under the Equal Protection Clause 
in ways clearly applicable to the facts of this case..

It can be argued that the neighborhood school policy 
is neutral and nondiscriminatory because it is applicable 
to Anglos and minorities alike. But this line of conten­
tion has been rejected in various contexts where racial 
classifications were defended as non-discriminatory be­
cause they applied to both blacks and whites. Cf. Mc­
Laughlin v. Florida, 379 U.S. 184 (1964); Loving v. Vir­
ginia, 388 U.S. 1 (1967); Shelley v. Kraemer, 334 U.S. 1 
(1948).

As demonstrated above, when race was a factor the 
respondents consistently acted differently than when race 
was not an issue. This disparate racial treatment in itself 
required the showing of a compelling, nonracial reason 
for its discriminatory, segregatory result.

It is also clear from the evidence described above that 
this disparate treatment in the administration of an ap­
parently neutral policy resulted in the systematic imposi­
tion of burdens upon Negroes and Ilispanos but not upon 
Anglos. Thus it was the Negroes and Hispanos who were 
required to attend these unequal schools. “Class legisla­
tion, discriminating against some, and favoring others is 
prohibited . . .” Tick Wo v. Hopkins, 118 U.S. 356 at 368 
(1886), quoting Barbier v. Connolly, 113 U.S. 27 (1885).

Even before Brown this provision of an unequal oppor­
tunity for public education to minorities would violate the 
Fourteenth Amendment under PlessyM1 As noted in 
Brotvn, 131

131 S w e a tt v. P a in te r ;  M cL a u rin  v. O klahom a S ta te  R egen ts, 
supra. Tangible inequalities in the provision of lower public edu­
cation were consistently struck down. C orbin  v. C oun ty  School



109

Such an opportunity [for education] where the state 
has undertaken to provide it, is a right which must 
he made available to all on equal terms. 347 II.S. 493.

Thus the Equal Protection Clause is violated simply by 
the District’s actions which systematically made it more 
difficult for minority children to receive an education where 
such difficulties were not imposed upon Anglo children. 
This result would obtain even if the minority student some­
how managed to overcome the burdens. As noted in 
Hunter v. Erickson, 393 U.S. 385 (1969), where the state 
action “places special burdens on racial minorities . . . ,” it 
is “no more permissible than denying them the vote, on an
equal basis with others---- ” 393 U.S. at 391-92. In Hunter,
the Court in determining whether there was a racial clas­
sification looked behind the apparently equal application 
of the law to everyone and found the “reality” to be “that 
the law’s impact falls on the minority.” 393 U.S. at 391.

Hunter is another of a line of equal protection cases 
where the Court has struck down state action which merely 
impinged upon a right without requiring a showing that 
the right was actually denied. Shapiro v. Thompson, 394
TJ.S. 618 (1969); Dunn v. Blumstein, — -  U.S. ___ , 40
U.S.L.W. 4269 (Mar. 21, 1972); Harper v. Virginia State 
Board of Elections, 383 U.S. 663 (1966).

It of course follows where as here the board’s actions 
had an actual adverse impact upon the educational result 
for minority children unable to overcome the obstacles and 
burdens which were created by the board, there has been 
a clear denial of equal protection. This is the teaching 
of an unbroken line of decisions invalidating actions which

Board, 177 F.2d 924 (4th Cir. 1949) ; Carter v. School Board of 
Arlington County, Virginia, 182 F.2d 531 (4th Cir. 1950).



110

denied equal rights to minorities in the use of public facil­
ities, in voting, jury selection, and numerous other areas.132 133

Similarly, where the action denied or impinged upon a 
fundamental interest such as procreation and marriage,138 
voting,134 or access to the criminal appellate procedure,135 * 
even where there was no racial classification involved this 
Court has required the State to come forward with com­
pelling reasons for its denial of the right. Harper v. Vir­
ginia State Board of Education, 383 U.S. 663, 670 (1966) :

We have long been mindful that where fundamental 
rights and liberties are asserted under the Equal Pro­
tection Clause, classifications which might invade or 
restrain them must be closely scrutinized and care­
fully confined. . . . (Emphasis added.)

It seems apparent that the right to an equal opportunity 
for public education is such a fundamental interest.

The trial court was correct in concluding that the re­
spondents’ systematic denial to Negroes and Hispanos of 
the fundamental right to an equal opportunity for public 
education, a denial unjustified by the absence of less dis­
criminatory alternatives and unexcused by the presence 
of a compelling state interest violated the Equal Protec­
tion Clause of the Fourteenth Amendment.

132 Muir v. Louisville Park Theatrical Association, 347 U.S. 971 
(1954); Mayor and City Council v. Dawson, 350 U.S. 877 (1955) ; 
Gayle v. Browder, 353 U.S. 903 (1956) ; Johnson v. Virginia, 373 
U.S. 903. (1963) ; Lee v. Washington, 390 U.S. 333 (1968) (per 
curiam) ;  Norris v. Alabama, 332 U.S. 463 (1946) • Turner v 
Douche, 396 U.S. 346 (1970).

133 Skinner v. Oklahoma, 316 U.S. 535 (1942).
134 Reynolds v. Sims, 377 U.S. 533 (1964); Kramer v. Union Free 

School District, 395 U.S. 699 (1969).
135 Griffin v. Illinois, 351 U.S. 12 (1956) ; Douglas v. California,

372 U.S. 353 (1963).



I l l

The Court of Appeals in reversing held that “racially 
imbalanced schools . . . established and maintained on 
raeially-neutral criteria . . did not deny equal protection. 
445 F.2d at 10005. It reached this result136 while appar­
ently accepting the premise that unequal educational op­
portunity would violate equal protection, “provided the 
state has acted to cause the harm. . . . ” 445 F.2d 1004.

The opinion reveals no open disagreement with the trial 
court’s findings of fact that an unequal educational oppor­
tunity was being provided to minority children. As to the 
cause of the inequality some disagreement is apparent, but 
it is not supported by any appellate determination of clear 
error, but rather conveniently ignored or mischaracterized 
as a legal conclusion based upon a per se concept of in­
herent inequality stemming from any kind of segregation.137 
Overall, however, while there is no clear reversal of find­
ings there is reflected in this section of the opinion the 
same piecemeal, fragmenting approach to the record which 
we have commented upon elsewhere in this Brief.138

We summarize the appellate court’s treatment of the 
facts in the footnote below.139 The court of appeals treat­

136 We are unable to state with confidence exactly how this, result 
obtained, but we will nevertheless attem pt to demonstrate that re­
gardless of the process employed by the appellate court, the result 
is unsupportable.

137 See p. 113, infra.
138 See pp. 73-79; 91, n. 9, supra, 115-116, infra.
139 The court agreed that the evidence sustained the finding of 

comparatively low teacher experience in the minority schools, but 
gave it no legal effect, 445 F.2d a t 1004. High teacher turnover and 
its relationship to the district’s transfer policy was not discussed by 
the appellate court. I t  agreed with the findings of low academic 
achievement and high dropout rates, but apparently interpreted 
these as being “indicative of a flaw in the system” rather than evi­
dence of unequal opportunity. 445 F.2d at 1004. Smaller sites and 
older buildings were not discussed. As far as the intangible factors 
in the segregated school, the court stated that it could not dispute



112

ment tended to mix the separate issues of the fact of in­
equality and its cause, treating them as one issue.* 140

As to the issue of the causation of the inequality the 
appellate court rejected the trial court’s finding that it was 
the segregated condition of these schools which was a major 
and predominant factor in producing inferior schools and 
unequal educational opportunity.

Either of the two possible explanations for this result 
indicate its error.

The first explanation is that the appellate court rejected 
the trial court’s findings of fact as to causation and sub­
stituted its own judgment as to causation.141 The trial 
court’s findings were supported by substantial evidence and

“the welter of evidence offered in the instant case and recited in the 
opinion of other cases that segregation in fact may create an inferior 
educational atmosphere.” 445 F.2d 1004. Nevertheless the court 
gave no weight to the fact of this inferior educational atmosphere. 
445 F.2d at 1004-05.

140 See 445 F.2d at 1004-05.
141 The appellate court s ta ted :

“Thus it is not the proffered objective indicia of inferiority 
which causes the substandard academic performance of these 
children, but a curriculum which is allegedly not tailored to 
their educational and social needs.” 445 F.2d 1004. (emphasis 
ours).

Of course, as the tria l court properly understood, the “objective 
indicia of inferiority” were not presented to nor used by the trial 
court as evidence of causation, but rather as evidence that these 
schools were in fact inferior. Some of these indicia did contribute 
to the inferiority but they were not asserted as being its principal 
cause. As the trial court summed it u p :

The above material summarizes plaintiffs’ evidence and our 
findings as to the objective indicia o f in eq u a lity  at the school's 
for which they seek relief. Although plaintiffs claim that fac­
tors such as inexperienced faculty tend to contribute to the 
inferior educational opportunity provided a t these schools, 
their main argument is that the segregation which exists at 
many of these schools makes a m a jo r co n tribu tion  to th e ir  in ­
fe r io r ity .” 313 F. Supp. at 81. (Emphasis added.)



113

their rejection violated the “clearly erroneous” rule of ap­
pellate review prescribed in Rule 52 of the Federal Rules 
of Civil Procedure.

The second explanation is that the appellate court either 
misunderstood or mischaracterized the trial judges factual 
finding of causation as though it were a legal conclusion. 
Thus the appellate court apparently believed that Judge 
Doyle had held that as a matter of law all segregated 
schools were inferior, regardless of how they became segre­
gated.

The trial court specifically rejected this per se approach:
. . [Pjlaintiffs are not entitled to relief merely upon 

proof that de facto segregation exists at certain 
schools within the School District.” 313 F. Supp at 77.

It is therefore apparent that the Tenth Circuit’s perception 
of the basis of the trial court’s findings as to causation 
was erroneous. The trial court did not invoke a per se 
rule; indeed it expressly recognized that the Tenth Cir­
cuit’s prior decisions in Downs142 143 and Dowellus prevented 
such an approach. 313 F. Supp. at 76-77. Rather it seems 
clear that Judge Doyle’s findings of inequality and causa­
tion were based entirely .upon the evidentiary record before 
him.

Regardless of the correctness of these contentions as 
to the appellate court’s treatment of causation, the decision 
reflects two pervasive errors for which the reinstatement 
of the trial court’s decree is the only appropriate solution.

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

143 Board of Education v. Dowell, 375 F.2d 158 (10th Cir.), cert, 
denied, 387 U.S. 913 (1967).



114

The first prevasive error is the appellate court’s narrow 
perception of the application of the Equal Protection Clause 
to public education. The gravamen of the appellate court’s 
result is that the Fourteenth Amendment is limited to the 
peculiar facts of Broivn, and a misreading of Brown as 
requiring an intent to provide unequal opportunity to 
minorities.

The rationale of Brown is not based upon any concept 
or finding that in creating dual school systems the states’ 
intended purpose was to disadvantage Negroes. Rather, 
Brown’s finding is that the states intended to accomplish 
segregation and must therefore be held responsible for 
inequalities caused by the segregation. Similarly in the 
instant case there is no requirement that petitioners dem­
onstrate that the respondents’ purpose or motive was to 
disadvantage minorities but merely that the effect or result 
of their intended actions was discriminatory as to Negroes 
and Hispanos.

The denial of equal protection condemned by the Four­
teenth Amendment requires only that the discrimination be 
the result of intended state action. Of course, where odious 
intent is shown as where it is clear that the only purpose 
was to discriminate, equal protection is also denied. But 
it is clearly error to reason that all violations must there­
fore be intentional in that sense. Rather, as shown by the 
authorities discussed above144 the central theme of equal 
protection is that where state action results in a racial 
discrimination, the Fourteenth Amendment is violated un­
less the state can show a compelling nonracial reason for 
continuance of the discrimination. This proposition was 
well stated in Burton v. Wilmington Parking Authority 
365 U.S. 706 (1961):

144 Supra, pp. 105-110.



115

But no state may effectively abdicate its responsi­
bilities by either ignoring them or by merely failing 
to discharge them whatever the motive may he. It is 
of no consolation to an individual denied the equal 
protection of the laws that it was done in good faith. 
Id. at 725 (emphasis added).

The appellate court’s restrictive interpretation of equal 
protection was clearly wrong, and at the heart of the 
appellate court’s reversal.

The second pervasive error arises from the appellate 
court’s complete disregard of the multiplicity of decisions 
and policies by the board and the school administration 
which created, contributed to, condoned and continued the 
educational disadvantagement of Negroes and Hispanos. 
These practices and policies, and their discriminatory effect 
have been recounted elsewhere in this Brief and will not be 
again repeated here. In failing to give effect to the entirety 
of the District’s actions, but rather taking a piecemeal view 
of the record, the appellate court arrives at the rather 
startling conclusion that the inequality is completely di­
vorced from any state action:

As stated in the first instance then the trial court’s 
findings stand or fall on the power of federal courts 
to resolve educational difficulties arising from circum­
stances outside the ambit of state action. 445 F.2d at 
1004 (emphasis added).

Finally, the appellate court also failed to give any weight 
to at least two factors each of which this Court has de­
termined to constitute denials of equal protection. As to 
intangible factors contributing to inequality, the court not 
only ignored Brown, but Sweatt and McLaurin as well, 
all decisions finding denial of equal protection in the pres-



116

enee of intangible factors which disadvantaged the minor­
ity’s right to equal educational opportunity.

Secondly, the board’s unequal provision to minorities of 
such an important educational input as the quality, ex­
perience and stability of teachers clearly violates every 
concept of equal protection from Plessy to Swann.1*5

We submit that it must be apparent from an overview of 
the numerous ways which the board and administration 
controlled school location, size and boundaries, pupil as­
signment and educational inputs that the respondents were 
responsible for the inequality of educational opportunity 
and the inferiority of the minority schools which resulted 
from their policies. We have contended elsewhere in this 
Brief that many of these acts and policies were demonstra­
tive of segregatory intent. But regardless of that conten­
tion, that these policies led to inequality and inferiority 
satisfies in full the state action requirement of the Four­
teenth Amendment. The appellate court’s inability to locate 
state action was a substantial, if not sole, basis for its con­
clusion that there was no denial of equal protection. We 
submit that the appellate court erred.

B. The Remedy Formulated by the District Court for the 
Provision of Equal Educational Opportunity Was Full)' 
Supported by the Record and Within the Bounds of 
Proper Judicial Discretion.

The breadth and flexibility inherent in equitable rem­
edies was well stated in Hecht Co. v. Bowles:1*5

The essence of equity jurisdiction has been the power 
of the Chancellor to do equity and to mould each 
decree to the necessities of the particular case. Flex- * 146

146 See 402 U.S. a t 18-19.
146 321 U.S. 321 (1944).



117

ibility rather than rigidity has distinguished it. The 
qualities of mercy and practicality have made equity 
the instrument for nice adjustment and reconcilation 
between the public interest and private needs as well 
as between competing private claims. 321 U.S. at 
329-30.

In school cases arising under the Equal Protection Clause 
the principles of Hecht have often been endorsed by this 
Court, from Brown II li7 to Swann.* 1** As noted in Broivn II, 
in the exercise of this equitable power the district courts 
might have to eliminate “a variety of obstacles . . .  in a 
systematic and effective manner.” 349 U.S. at 300.

Brown had found that racial segregation inherently 
caused unequal educational opportunity for Negroes, and 
remedial efforts under Brown have been directed toward 
eliminating all vestiges of the dual system “root and 
branch.” Green v. County School Board, 391 U.S. 430, 438 
(1968).

In the instant case the remedial objective was perceived 
to be somewhat different than under Brown and its prog­
eny. The violation found was not cast in terms of racial 
segregation but rather as the State’s unequal provision 
of public education to Denver’s minority children. Thus 
the remedial objective went beyond the elimination of 
segregation and included the equalizing of minorities’ ed­
ucational opportunities.

Certainly the principles established since Brown are rel­
evant to this case, for here too the racial identity of schools 
was found to be an important contributing factor to the 
inequality.

147 Brown v. Board of Education, 349 U.S. 294, 300 (1955).
148 Swann v. Charlotte-Mecklenburg Board of Education, 402 U S

1, 15 (1971).



118

These principles include:

1. The remedy must promise “realistically to work.” 149 150
2. The remedy must be thorough in its elimination of 

the violation and in guarding against its reoccurrence; 
it must be eliminated “root and branch.” 160

3. The remedy must treat all vestiges of the violation; 
pupil assignment, faculty and staff assignment, trans­
portation, extracurricular activities, or any other fac­
tor contributing to the racial identity of the school; 
Independent of student assignment, where it is pos­
sible to identify a “white school” or a “Negro school” 
simply by reference to the racial composition of teach­
ers and staff, the quality of school buildings and 
equipment, or the organization of sports activities, “a 
prima facie case of violation of substantive constitu­
tional rights under the Equal Protection Clause is 
shown.” Swann, supra, 402 U.S. at 18.
Tangible inequalities and different treatment on the 
basis of race must be eliminated. Ibid.

4. “The district judge or school authorities should make 
every effort to achieve the greatest possible degree 
of actual desegregation . . .” Swann, supra, 402 U.S. 
at 26.

5. “It is incumbent upon the school board to establish 
that its proposed plan promises meaningful and im­
mediate progress. . . .  It is incumbent upon the dis­
trict court to weigh that claim in light of the facts at 
hand and in light of any alternatives which may be 
shown as feasible and more promising in their ef­
fectiveness. . . .  Of course the availability to the board

149 Green v. County School Board, 391 U.S. at 439.
150 Id. at 438.



119

of other more promising courses of action may in­
dicate a lack of good faith; and at the least it places 
a heavy burden upon the board to explain its prefer­
ences for an apparently less effective method.” Green 
supra, 391 U.S. at 439.

6. The constitutional principles of equality “cannot be 
allowed to yield simply because of disagreement with 
them,” 161 nor are the minority’s constitutional rights 
“to be sacrificed or yielded to . . . violence and dis­
order . . . ,” 162 nor can they be nullified “ingeniously 
or ingenuously.” 163

Just as the foregoing principles apply to the objective 
of the elimination of segregation, they are equally ap­
plicable to the objective of equalizing educational oppor­
tunity.

The trial court properly applied these principles in for­
mulating a varied remedy. The board’s proposals were lim­
ited to segregated compensatory education programs and 
the Denver version of freedom of choice.

Judge Doyle properly rejected compensatory education 
in a segregated setting where the record demonstrated 
the ineffectiveness of such programs.

In accepting compensatory education in an integrated 
setting the trial court selected a feasible, “more promising” 
program.

In rejecting the board’s freedom of choice program as 
the exclusive means for ending the racial identity of

151 Brown II , supra, 349 U.S. at 300.
162 Cooper v. Aaron, 358 U.S. 1,16 (1958).
163 Id. a t 17.



120

schools, the trial court’s judgment as to the inadequacy of 
this approach was indirectly endorsed on appeal. The ap­
pellate court stated:

. . . [A] realistic appraisal of voluntary transfer plans 
has shown that they simply do not fulfill the constitu­
tional mandate of dismantling segregated schools. In 
fact the voluntary transfer plans previously employed 
in Denver have had a minimal effect on the segregated 
status of the Park Hill area schools. 445 F.2d at 1002.

In mandating desegregation and integration, Judge Doyle 
implemented several important principles. The first was to 
remove the racial identity of the inferior schools. The 
second principle was that of timing; the mandatory plan 
would accomplish the objective much faster than a volun­
tary plan. Thirdly, desegregation and integration removed 
some of the principal causes of tangible inequalities in 
terms of teacher experience, teacher turnover, teacher ex­
pectancies and adequate facilities, as demonstrated by the 
Berkeley experience described by Dr. Sullivan. Finally, the 
trial court was recognizing not only that integration by 
itself assisted in raising minority achievements, but fur­
ther that it furnished the best possible environment for 
compensatory education. The board’s proposals ignored all 
of these factors, and were properly rejected by the court.

Finally, that the proposal to leave these schools segre­
gated would have majority community support would not 
excuse failure to select an effective plan for the provision 
of equal opportunity.

The foregoing facts demonstrate that the board has de­
faulted in its duty to come forward with a realistic, effec­
tive plan. The trial court properly exercised its responsi­
bilities in going forward and devising a remedy which on



121

the basis of the record before it offered superior potential 
for success.154

The trial court selected a variety of components, includ­
ing desegregation, programs directed toward improving 
understanding of minority culture and history, raising 
teacher expectancies, raising the level of teacher experi­
ence, transportation, magnet schools, voluntary transfer 
and community education. The remedy exemplifies the 
equitable principles of fairness, flexibility and the balancing 
of interests. The remedy was fully within the administra­
tive and financial competence of the District.

C. The Remedy Should Have Been Extended to All of the 
District’s Predominantly Minority, Inferior Schools.

While as demonstrated above the trial court’s formula­
tion of the remedial plan was proper, we urge here that 
Judge Doyle should have extended the remedy to certain 
other schools in the District.

Eight elementary and one junior high school are involved 
in this contention.155 As of September, 1969, these schools 
contained nearly 4,000 minority students and 860 Anglos, 
distributed as follows :156

154 Swann, supra, at 16:
“In  default by the school authorities of their obligation to prof­
fer acceptable remedies, a district court has broad power to 
fashion a remedy that will assure a unitary school system.”

155 Boulevard, Crofton, Ebert, Garden Place, Gilpin, Swansea, 
W yatt and W ym an; Morey Junior High.

156 DX S-l, A. 2166a.



122

Racial Composition of Subject Schools

Anglo
No. %

Boulevard 118 29.9
Crofton 23 7.1
Ebert 35 10.6
Garden Place 138 17.0
Gilpin 22 3.2
Swansea 197 29.2
Wyatt 9 1.9
Wyman 103 27.5

Total 645
Morey Jr. High 215 26.8

Total 860

Negro Rispano
No. % No. %

2 0.5 269 68.1
121 38.4 162 51.5
115 34.6 174 52.4
140 17.2 525 64.7
252 36.4 411 59.4
24 3.6 450 66.6

223 46.4 248 51.5
142 38.0 111 29.7

1,019 2,350
419 52.4 149 18.6

1,438 2,499

The eight elementary schools contain 12% of the Negro 
and 18% of the Hispano elementary population. Morey 
contains over 13% of the Negro junior high population.157

157 These schools contain less than 2% of the Anglo population. 
DX S-l, A. 2166a.



123

All of the tangible inequalities found in the court-desig­
nated schools are present to the same degree in these nine 
schools. Indeed, some of them are even worse than the 
average of the schools selected for relief.158 On the average 
in 1968 the two groups of schools were nearly identical 
in their inequality:

Achieve­
ment

Median 7 rs. 5th Grade
New Probationary Teachers Percentile

Teachers Teachers Experience 1968
Subject Schools 20% 42% 3.7 yrs. 20th
Court Schools 23% 48% 3.5 yrs. 21st
District Average 15.9% 37% 5.6 yrs. 43rd
Selected Anglo Schs. 9.8% 25.6% 9.1 yrs. 75th

The evidence showed that the same low expectancies 
were established for these schools.169 The expert testimony

Comparison of the Subject Schools to the 
Average Court-Designated School*

Teacher D a ta  

N e w  P roha tionary
M ed ian

E xp erien ce

M ed ian  
A ch iev e m e n t  

1968, 
P ercen tile  

G rade 5

Ct. A v g . Ct. A v g . Ct. A v g . Ct. A v g . 21st
School (2 3 % ) (4 8 % ) 8.5 Y rs . P ercen tile

Boulevard 17% 50% 3.0 20
Crofton 21 43 4.0 18
Ebert 21 42 3.0 18
Garden Place: 18 37 4.0 16
Gilpin 25 42 4.5 23
Swansea 18 36 3.5 22
W yatt 14 27 6.0 15
Wyman 22 50 4.0 24

* PX  509,
Avg. 20 

510; A . 2122a,
Avg. 42 
A. 2124a.

Avg. 3.7 Avg. 20

169 PX  83.



124

was that the homogeneous peer group effect160 and the 
adverse psychological attitudes161 were the same in pre­
dominantly minority schools as in schools which were 
either predominantly Negro or predominantly Hispano.

In short, there was no basis in the record for the trial 
court’s distinction between schools which were either 70% 
Negro or 70% Hispano on the one hand, and those whose 
combined Negro and Hispano enrollment exceeded 70%. 
Yet the trial court found one group to be denying equal 
protection and declined to find a violation as to the sub­
ject schools. 313 F. Supp. at 69, 77.

Neither is there any legal basis for the distinction. It is 
clear that the protection of the Fourteenth Amendment is 
not limited to Negroes162 and extends to Hispanos.163

While the violation here was unequal provision of oppor­
tunity rather than intentional segregation, it would make 
little rational sense to declare that a formerly separate 
tri-racial system of Anglos, Negroes and Hispanos could 
be “desegregated” by simply integrating the Negroes and 
Hispanos and leaving the Anglos in racially identifiable, 
all-white schools.164

The distinction leads to other irrational results. The 
effect of the distinction is that it is unconstitutional

160 Coleman, A. 1534a; O’Reilly, A. 1952a-54a. PX  83.
161 Dodson, A. 1473a-76a, A. 1498a-99a; O’Reilly, A. 1952a-53a.
162 Y ic k  W o  v. H o p k in s , 118 U.S. 356 (1886); K orem a tsu  v. 

United, S ta tes , 323 U.S. 214 (1944).
163 H ernandez  v. Texas, 349 U.S. 475 (1954) ; Cisneros v. C orpus  

C hristi In d ep . School D is tr ic t, 324 F. Supp. 599, 606 (S.D. Tex. 
1970), appeal pending.

164 In Cisneros, supra , n. 163, the federal district court deter­
mined that such “desegregation” did n o t meet the disestablishment 
requirements of B ro w n , and ordered integration of Anglos as well. 
324 F. Supp. at 616, 628.



125

to discriminate against Negroes or Hispanos, but not 
against them together. It simply does not make sense to 
invalidate actions taken against Negroes or Hispanos 
separately while declaring the same actions legal if taken 
against them together.

The constitutional violation affected these nine subject 
schools; the remedy was equally appropriate for them. 
The trial court erred in failing to extend the remedy to 
these schools.

III .

C o n sid e red  T o g e th e r  th e  P ro v e n  R ac ia l S eg rega tion  
a n d  th e  P ro v e n  In e q u a lity  o f  E d u c a tio n a l O p p o rtu n ity  
in  D en v e r R e q u ire  a  System -W ide R em ed ia l A p p ro ach .

Considered separately, the constitutional violations dis­
cussed in parts I and II of the Argument, supra, would 
each support the relief sought by petitioners. Considered 
together they reinforce the need for a systematic remedy 
and a thorough remedy. Considered together they show the 
full magnitude of the constitutional deprivation imposed 
by the current system. The depth of the wrong inflicted 
on the victims of discrimination is more clearly seen when 
the practice of covert racial segregation is seen in connec­
tion with the operation of a caste-type separate and unequal 
educational system in the segregated schools. There can 
be no doubt that such a combination of wrongs inflicts 
serious injury and justifies extraordinary remedies.



126

CONCLUSION

Wherefore, petitioners respectfully submit that the judg­
ment of the court of appeals should be reversed insofar 
as it reverses the judgment of the district court, and that 
the case should be remanded to the district court with di­
rections that the court grant the prayers of the complaint 
requesting implementation of a comprehensive desegrega­
tion plan for the Denver school system.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
Charles S tephen R alston 
N orman J . Chachkin  

10 Columbus Circle 
New York, N. Y. 10019

C ordon C. Greiner 
R obert T. Connery

500 Equitable Building 
Denver, Colorado 80202

Attorneys for Petitioners

A nthony  G. A msterdam

Stanford University Law School 
Stanford, California 94305

Of Counsel



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