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

    IN  T H E

(&mrt at %  luttefc gratae
O ctober Term, 1971

No. 71-507

WILFRED KEYES, et al.,

vs.
Petitioners,

SCHOOL DISTRICT NO. 1,
DENVER, COLORADO, et al.,

Respondents.

O n W rit of Certiorari to th e United States 
C ourt o f A ppeals for the Tenth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI
CURIAE AND ANNEXED BRIEF OF THE ANTI­

DEFAMATION LEAGUE OF B’NAI B’RITH, 
AMERICAN JEWISH CONGRESS AND 

AMERICAN JEWISH COMMITTEE

Arnold F orster 
Paul H artman 
315 Lexington Avenue 
New York, New York 10016 

Attorneys for Anti-Defamation 
League of B’nai B’rith

Paul S. Berger 
J oseph B. Robison 
15 East 84th Street 
New York, New York 10028 

Attorneys for 
American Jewish Congress

Samuel Rabinove 
165 East 56th Street 
New York, New York 10022 

Attorney for
American Jewish Committee

Edward N. Leavy 
Stuart R. Shaw 
Roy A. Jacobs

Of Counsel



T A B L E  OF  C O N T E N T S

PAGE

Motion ..........................................................................  1

Brief in Support of Motion ........................................  5

Interest of the Amici ...................................................  5

Opinions Below ............................................................  6

Statement of the Case .................................................  6

Questions to Which This Brief Is Addressed.............  8

Summary of Argument ...............................................  8

Argument
Point I—Inequality of public educational facilities

is a violation of equal protection ..................... 10
Point II—Racial segregation discriminates per se 

against black pupils and, if brought about by 
state action, is a violation of the Fourteenth 
Amendment ....................................................... 12
A. Segregated Schools Are Inherently Un­

equal ..........................................................  12
B. Racial Segregation Brought About by

State Action Is a Denial of Equal Protec­
tion .............................................................. 15
1. If the segregation is caused by state ac­

tion, it is the effect that matters regard­
less of motive or purpose ...................... 15

2. The Equal Protection Clause is violated
if the state is entwined in the manage­
ment of a discriminatory program.......  18



PAGE

3. So-called “ de facto” segregation in 
public schools constitutes unconstitu­
tional discrimination within the scope 
of the Brown decision ..........................

Point III—Any desegregation plan must encompass 
the entire school district and not merely iso­
lated schools .....................................................

Conclusion ...........................................

TABLE OF AUTHORITIES

C ases:

Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) .......................................................

Barksdale v. Springfield School Committee, 237 F. 
Supp. 543 (Mass. 1965) rev’d on other grounds,
348 F. 2d 261 (1st Cir. 1965) ............................. 14,

Blocker v. Board of Education of Manhasset, 226 F.
Supp. 208 (E.D.N.Y. 1964) ...................................

Booker v. Board of Education of Plainfield, 45 N.J.
161, 212 A. 2d 1 (1965) ........................................

Bradley v. Milliken, 433 F. 2d 897 (6th Cir. 1970), 438 
F. 2d 945 (6th Cir. 1971) Civil Action No. 35257
(E.D. Mich. Sept. 27, 1971) ...............................

Branche v. Board of Education of Hempstead, 204 F.
Supp. 150 (E.D.N.Y. 1962) ...................................

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

Brown v. Board of Education, 347 H.S'. 483 (1954)
2, 9,10,12,14,15, 20, 21, 22, 30, 

Burton v. Wilmington Parking Authority, 365 US 
715 (1961) ...................................................... 16,19,

20

28

32

28

26

26

26

26

26

26

33

20



I l l

PAGE

Clemons v. Board of Education of Hillsboro, 228 F. 
2d 853 (6th Cir. 1956) cert, denied, 350 U.S. 1006
(1956) ...................................................................  17

Commonwealth v. Welansky, 316 Mass. 621, 55 N.E.
2d 902 (1944) ........................................................  16

Cooper v. Aaron, 358 U.S. 1 (1958) ............................ 19
Crawford v. Board of Education of the City of Los 

Angeles, Civil Docket No. 822-854 (Superior 
Court for County of Los Angeles, Feb. 11, 1970) 26

Dandridge v. Jefferson Parish School Board, 332 F.
Supp. 590 (E.D. La. 1971) ................................... 30

Davis v. Board of School Commissioners of Mobile,
402 U.S. 33 (1971) ...............................................  30

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)

15, 27,30
Douglas v. California, 372 U.S. 353 (1963) .................  17
Downs v. Board of Education of Kansas City, 336 F.

2d 988 (10th Cir. 1964) cert, denied, 380 U.S. 914
(1965) ................................................................. 8

Evans v. Newton, 382 U.S. 296 (1966) ........................  18

Griffin v. Illinois, 351 U.S. 12 (1956) .......................... 17

Haney v. County Board of Sevier County, 410 F. 2d
920 (8th Cir. 1969) .............................................. 29

Harper v. Yirginia Board of Education, 383 U.S. 663
(1966) .................................................................  17

Hobson v. Hansen, 269 F. Supp. 401 (D.C. 1967) aff’d
sub nom. Smuek v. Hobson, 408 F. 2d 175 (D.C.
Cir. 1969) ................................................... 10,18,26,32

Hunter v. Erickson, 393 U.S. 385 (1969) .................... 15,16



I V

Jackson v. Pasadena City School District, 59 Cal. 2d
871, 31 Cal. Rptr. 606, 382 P. 2d 878 (1963) ........ 26

Kennedy Park Homes Assn., Inc. v. City of Lacka­
wanna, 436 F. 2d 108 (2nd Cir. 1970) cert, denied,
401 U.S. 1010 (1971) ............................................17,18

Lee v. Nyquist, 318 F. Snpp. 710 (W.D.N.Y. 1970)
aff’d 402 U.S. 935 (1971) ....................................  14

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) 10
Mountain States Telephone and Telegraph Co. v. Horn 

Tower Construction Co., 147 Colo. 210, 363 P. 2d 
175 (1961) ............................................................  16

Pate v. Dade County School Board, 434 F. 2d 1151
(5th Cir. 1970) cert, denied, 402 U.S. 953 (1971) 29

People v. Conroy, 97 X.Y. 62 (1884) .......................... 16

Reitman v. Mulkey, 387 U.S. 369 (1967) ................... 16
Reynolds v. Sims, 377 U.S. 533 (1964) ......................  17
Robinson v. Shelby County Board of Education, 330

F. Supp. 837 (W.D. Tenn. 1971) .......................... 28

Sims v. Georgia, 389 U.S. 404 (1967) ........................  16
Spangler v. Pasadena City Board of Education, 311 

F. Supp. 501 (C.D. Cal. 1970) aff’d 427 F. 2d 1352
(9th Cir. 1970) ..................................................... 26

Spencer v. Kugler, 326 F. Supp. 1235 (N.D.N.J. 1971)
alT'd 92 S.Ct. 707 (1971) ......................................  27

Sweat) v. Painter, 339 U.S. 629 (1950) ......................  10

United States v. Crockett Board of Education, Civil
Action No. 1663 (W.D. Tenn. May 15, 1967) ......  29

United States v. Jefferson County Board of Educa­
tion, 380 F.2d 385 (5th Cir. 1967) cert, denied,
389 U.S. 840 (1967) .............................................  25

PAGE



V

PAGE

United States v. Louisiana, 380 U.S. 145 (1965) ......  16
United States v. Watson Chapel School District No.

24, 446 F. 2d 933 (8th Cir. 1971) ........................  29

Tick Wo v. Hopkins, 118 U.S. 356 (1886) ................. 16

Other A u th o r itie s :

Brameld, “ Educational Costs”, Discrimination and
National Welfare (Mclver, ed. 1949), pp. 44-48 ... 23

Chein, “ Wliat are the Psychological Effects of Segre­
gation Under Conditions of Equal Facilities?”
3 Int. J. Opinion and Attitudes Res. 229 (1949) 23

Clark, Kenneth B. “ Effect of Prejudice and Discrimi­
nation on Personality Development” (Mid-Cen­
tury White House Conference on Children and
Youth, 1950) ........................................................  22

Coleman, Equality of Education Opportunity (U.S.
Office of Education, 1966) ...................................12,13

Deutscher and Chein, “ The Psychological Effects of 
Enforced Segregation: A Survey of Social Sci­
ence Opinion” 26 J. Psychol. 259 (1948) ...........  23

Frazier, “ Effects of Discrimination on the Negro”
The Negro in the United States (1949) pp. 674- 
681 ........................................................................  24

“ Racial Isolation in the Public Schools” A Report of 
the United States Commission on Civil Rights 
(1967) ............................................................    13

Report of the Board of Regents of the University
of the State of New York (1960) ........................  13

Restatement, Second, Torts ........................................  16
Witmer and Kotinsky, “ Personality in the Making”

(c. VI, 1952) 22



IN  T H E

n m  (U r n tr t  x t f  %  Mnxteb I & a t a
O ctober Term, 1971

No. 71-507

"Wilfeed K eyes, et al.,

vs.
Petitioners,

S chool Distbict N o. 1, D enveb, Colobado, et al.,
Respondents.

On W rit o f Certiorari to the United States 
Court o f A ppeals for the Tenth Circuit

-----------  —8| » gl i. ------------

MOTION OF THE ANTI-DEFAMATION LEAGUE 
OF B’NAI B’RITH, AMERICAN JEWISH 
CONGRESS AND AMERICAN JEWISH 

COMMITTEE FOR LEAVE TO FILE 
A BRIEF AMICI CURIAE

The undersigned, as counsel for the above-named organ­
izations, respectfully move this Court for leave to file the 
accompanying brief amici curiae.

Interest of the Amici
The B ’nai B ’rith was founded in 1843 and established 

its Anti-Defamation League as its educational arm in 1913. 
The American Jewish Committee was founded in 1906 and 
the American Jewish Congress in 1918. All three of these 
organizations are concerned with preservation of the seeu-



2

rity and constitutional rights of Jews in America through 
preservation of the rights of all Americans. They believe 
that the welfare of Jews in the United States is inseparably 
related to the extension of equal opportunity for all.

This case raises an important issue under the Equal 
Protection Clause of the Fourteenth Amendment, involving 
a form of discrimination recognized by this Court as ab­
horrent nearly eighteen years ago—segregation in public 
education. Here, the City of Denver, Colorado is maintain­
ing what amounts to a segregated school system wherein 
minority students are being denied an equal educational 
opportunity.

The amici view the effect of the Denver school board’s 
actions in administering its schools as having the same legal 
consequences as if separate schools were mandated by the 
board. Since these three organizations have consistently 
fought for equal opportunities for all, regardless of race, 
color, creed or national origin, and have opposed racial 
segregation in schools, they are deeply concerned about the 
impact of the decision in this case on future efforts to 
correct segregation in public schools.

The accompanying brief amici curiae is based on exten­
sive concern and experience of the three organizations in 
matters involving discrimination against minorities. We 
argue that the harmful effects of segregation operate 
whether or not it is imposed by the state. In this connec­
tion, we show that this Court’s conclusion in Brown v. 
Board of Education, 347 U. S. 483 (1954) that segregated 
schools are inherently unequal rested on studies most of 
which apply equally to de facto and de jure segregation.



3

We argue further that measures designed to correct past 
illegal discrimination cannot he confined to the narrow area 
directly affected by the discrimination but must be broad 
enough to insure elimination of the effects of discrimina­
tion from all of the operations conducted by the discrim­
inator.

We have sought the consent of the parties to the filing of 
a brief amici curiae. Counsel for petitioners have consented. 
Counsel for respondents have informed us that the Denver 
school board had directed counsel to consent to requests to 
file amicus briefs only “ upon written assurance that the 
person or organization requesting the consent will file a 
brief supporting the position of the school district.”

May 1, 1972

Bespectfully submitted,

A bnold F obsteb 
P aul H abtman 
315 Lexington Avenue 
New York, New York 10016 

Attorneys for Anti-Defamation 
League of B ’nai B ’rith

P aul S. B eegeb 
J oseph B. B obison 
15 East 84th Street 
New York, New York 10028 

Attorneys for 
American Jewish Congress

Samuel B abinove 
165 East 56th Street 
New York, New York 10022 

Attorney for
American Jewish Committee



IN' T H E

j^ u p m n ?  (Em trt o f  tty
O cto b er T erm , 1971

No. 71-507

W ilfred K eyes, et al.,
Petitioners,

vs.

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

On W rit of Certiorari to the United States 
Court o f A p p ea ls  for the Tenth Circuit

BRIEF OF ANTI-DEFAMATION LEAGUE OF 
B’NAI B’RITH, AMERICAN JEWISH CONGRESS 

AND AMERICAN JEWISH COMMITTEE 
AS AMICI CURIAE

This brief is submitted by the undersigned amici curiae 
conditionally upon the granting* of the motion for leave to 
file to which it is attached.

Interest of the Amici

The interest of the amici is set forth in the attached mo­
tion for leave to file.

C 5 ]



6

Opinions Below

The opinions of the District Court are reported at 303 
F. Supp. 279 and 313 F. Supp. 61. The opinion of the Court 
of Appeals is reported at 445 F.2d 990.

Statement of the Case

This case arises out of a school desegregation action 
brought by Denver school children and their parents in 
Federal District Court against the school board of School 
District No. 1, Denver, in 1969. Their complaint sought 
complete desegregation of the Denver public school system 
and provision of equal educational opportunities to all Den­
ver school children.

The litigation was initiated after a newly elected school 
board rescinded a partial desegregation plan prepared by 
the outgoing board. That plan sought to alleviate high 
concentrations of Negro and Spanish-surnamed students in 
some schools and high concentrations of white students in 
others.

Evidence was introduced in the District Court to show 
a pattern of unconstitutional activity by the school board 
not only in the rescission of its desegregation plan for the 
Denver schools but also in its administration of the school 
system over the years (in its school site policies, attendance 
zones, etc.). In deciding on a motion for a preliminary in­
junction, the court ruled that the board had acted uncon­
stitutionally, with respect to the Park Hill area in north­
east Denver, in its action rescinding the original desegrega­



7

tion plan, and it preliminarily directed the school officials 
to implement the terms of the rescinded plan (App. la ).#

These findings were reiterated by the District Court in 
its opinion on permanent relief (App. 44a). However, it 
there held that, as to the rest of the Denver schools, there 
had been no sufficient showing of a segregation policy on 
the part of the school board. It reached this conclusion 
even though it found that segregation existed in those 
schools as it did in those schools in which a segregation 
policy had been in existence (App. 66a).

The District Court also found that certain of the mi­
nority dominated schools were failing to offer their stu­
dents an educational opportunity equal to that afforded 
white students in other Denver public schools (App. 89a). 
Because the court concluded that these schools were un­
equal largely because of their segregated character (App. 
86a-87a), and also because, in a hearing on the question 
of remedy, the court found that desegregation was a neces­
sary element in equalizing the educational opportunity 
(App. 112a.), it directed the school board to desegregate 
and otherwise equalize the educational offering at these 
schools.

On appeal, the Court of Appeals for the Tenth Circuit 
agreed with the District Court both as to the segregation 
policy in northeast Denver (Park Hill) and as to the lack 
of a showing thereof as to other Denver schools (App. 122a- 
139a, 147a-150a). However, it modified the lower court’s 
order to desegregate, insofar as it applied to schools out- *

* References to (App. ) are to the Appendix to the Petition 
for Certiorari.



8

side the Park Hill area, holding that the court could not 
order desegregation of schools which had not been segre­
gated by official policy (App. 144a). The Court of Appeals 
thereby declined to overrule Downs v. Board of Education 
of Kansas City, 336 F.2d 988 (10th Cir. 1964), cert, den., 
380 U.S. 914 (1965).

Questions to Which This Brief Is Addressed

This brief amici curiae is addressed to the following- 
questions :

1. Hoes the inferiority of facilities of those schools in 
the Denver school district attended predominantly by 
Negro and Hispano students of itself establish a violation 
of the Equal Protection Clause of the Fourteenth Amend­
ment!

2. Does racial segregation in the public schools oper­
ated by respondents constitute discriminatory state action 
in violation of the Equal Protection Clause, irrespective of 
the intent of the policies pursued by respondents!

3. Should the remedial order in this case be limited to 
that part of the school system operated by respondents in 
which intentional segregation was found!

Summary of Argument

I. The record here plainly establishes the inferior qual­
ity of those Denver schools attended predominantly by 
Negro and Hispano students. The unconstitutionality of 
such unequal treatment was recognized even prior to 1954 
and is sufficient, by itself, to require corrective action here.



9

II. Racial segregation, per se, is harmful to Negro 
students. To the extent that it is brought about by state 
action, it results in a denial of equal protection.

A. This Court held in Brown v. Board of Education, 
347 U. 8. 483 (1954), that segregated schools are inherently 
unequal. Brown, establishes that racial classification 
brought about by state action is per se a denial of equal 
protection.

Bl. If racial segregation is brought about by state 
action, the Constitution is violated even if there is no show­
ing that segregation was the intended effect of the state 
action. It is the result, not the motive, that determines the 
constitutionality of the program in question.

B2. Unconstitutional state action is shown where state 
agencies are intertwined in a racially classified program 
under circumstances in. which the power of the state could 
be used to prevent or eliminate the racial classification.

B3. This Court’s conclusion, in the Brown case, that 
segregated schools are inherently unequal was announced 
in the context of deliberately imposed segregation. How­
ever, there is no basis for assuming that it was confined to 
that context. In fact, of the six authorities cited by this 
Court for its conclusion, four applied equally to de facto 
segregation. Recent decisions in the lower courts have in­
creasingly rejected the de facto-de jure distinction.

III. Any desegregation plan must encompass the entire 
school district and not merely those schools where an official 
segregation policy is shown to have had demonstrable ef­



10

fects. Beginning with this Court’s decision in the Brown 
case, remedial orders in school desegregation cases have en­
compassed entire school districts. This is consistent with 
the general practice under antidiscrimination laws, under 
which violators are required to take remedial steps with 
respect to all their operations. It is consistent also with 
the practical consideration that effective desegregation re­
quires involvement of the entire school district.

A R G U M E N T  

P O I N T  O N E

Inequality of public educational facilities is a vio­
lation of equal protection.

Even prior to this Court’s decision in Brown v. Board 
of Education, 347 U. S. 483 (1954), it had long been estab­
lished that inequality of racially separate, public education­
al facilities was prohibited by the Equal Protection Clause 
of the Fourteenth Amendment of the Constitution. See, e.g., 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); 
Sweatt v. Painter, 339 U. S. 629 (1950). That is, as Judge 
Skelly Wright noted in Hobson v. Hcmsen, 269 F. Supp. 491, 
496 (D.C., 1967), aff’d sub mom. Smuck v. Hobson, 408 F.2d 
175 (D.C. Cir. 1969) :

To the extent that Plessy’s separate-but-equal doc­
trine was merely a condition the Supreme Court at­
tached to the states’ power deliberately to segregate 
school children by race, its relevance does not survive 
Brown. Nevertheless, to the extent the Plessy rule, as 
strictly construed * * * is a reminder of the respon­
sibility entrusted to the courts for insuring that dis­



11

advantaged minorities receive equal treatment when 
the crucial right to public education is concerned, it can 
validly claim ancestry for the modern rule the court 
here recognizes.

Similarly, the District Court in this case noted that, “ if 
the school board chooses not to take positive steps to al­
leviate de facto segregation, it must at a minimum insure 
that its schools offer an equal educational opportunity’’ 
(App. 89a). Judge Doyle went on to find that such equal 
educational opportunity is not being provided. Thus, he 
listed 15 schools, all of which have at least 70-75% Negro 
and/or Hispano students, which fail to meet the absolute 
minimum Equal Protection standards (App. 76a). He cited 
factual data relating to achievement (App. 78a), teacher 
experience (App. 80a), teacher turnover (App. 82a), pupil 
dropout rate (App. 81a), and building facilities (App. 83a) 
in support of his conclusions.

Teacher experience is a key example. At the Anglo 
schools, nearly half the teachers have over ten years ex­
perience; the figure for the Negro/Hispano schools is less 
than one-fifth. In addition, nearly twenty-five per cent of 
the teachers in the Negro/Hispano schools have no previous 
experience in the Denver school system; less than ten per 
cent of the teachers in the Anglo schools have no previous 
experience (App. 80a).

We submit, therefore, that, even by pre-Brown stand­
ards, the Denver school board has deprived the students 
under its jurisdiction of the equal protection of the laws. 
This Court should therefore affirm the District Court’s de­
cision on the Second Count of the Second Cause of Action 
and reverse the Court of Appeals’ reversal of that decision.



12

P O I N T  T W O

Racial segregation discriminates per se against 
black pupils and, if brought about by state action, is 
a violation of the Fourteenth Amendment.

A . Segregated  Schools A re  Inherently Unequal.

In 1954, this Court held in Brown, supra, that separate 
schools are inherently unequal. 347 IT. S. at 485. The 
Court plainly stated that segregated schools are incapable 
of providing quality education. It also said that the effect 
of segregation in the school system was to place an indelible 
stamp of inferiority on those Negro children who were com­
pelled to attend “ Negro” schools.

Since 1954, numerous court decisions and a number of 
socio-educational studies have reinforced the conclusions 
reached in Broivn. One of the most important studies is 
“ Equality of Educational Opportunity,” published in 1966 
by the United States Office of Education, which was pre­
pared under the supervision of Dr. James Coleman. Sec­
tion 30 of the Coleman Report is of particular relevance to 
the issue of segregated schools. It notes, at page 302, that 
“ attributes of other students account for far more varia­
tion in the achievement of minority group children than do 
any attributes of school facilities and slightly more than do 
attributes of staff.” The Report further found that mid­
dle-class children have a heightened sense of motivation 
which induces a classroom atmosphere most conducive to 
learning and that Negro children showed educational im­
provement when introduced to such an atmosphere.



13

The Report also noted, at page 321, that school achieve­
ment was closely related to the student’s sense of confidence 
and belief in the control of his own destiny. For many rea­
sons, Negroes and other minority students are likely not 
to have confidence in themselves. By exposing them to the 
motivation to learn and sense of confidence of other 
(middle-class) children, their academic performance can 
be improved. And the only way to gain this exposure is by 
integration.

Several years earlier, this view had been expressed by 
the Board of Regents of the University of the State of New 
York. In a statement issued at its meeting of January 27- 
28, 1960, the Board said:

Modern psychological knowledge indicates that 
schools enrolling students largely of homogeneous, 
ethnic origin, may damage the personality of minority 
group children. Such schools decrease their motiva­
tion and thus impair the ability to learn. Public edu­
cation in such a setting is socially unrealistic, blocks 
the attainment of the goals of democratic education 
and is wasteful of manpower and talent, whether this 
situation occurs by law or by fact.

A third, more recent study, by the United States Com­
mission on Civil Rights, entitled “ Racial Isolation in the 
Public Schools,” concluded in 1967 (at 193) :

The central truth which emerges from this report 
and from all of the Commission’s investigations is sim­
ply this: Negro children suffer serious harm when
their education takes place in public schools which are 
racially segregated, whatever the source of such segre­
gation may be * * # Negro children believe that their 
schools are stigmatized and regarded as inferior by the



14

community as a whole. Their belief is shared by their 
parents and by their teachers. And their belief is 
founded in fact.

The case law uses very much the same language:

Racial concentration in his school communicates to 
the Negro child that he is different and is expected to 
be different from white children. Therefore, even if 
all schools are equal in physical plant, facilities, and 
ability and number of teachers, and even if academic 
achievement were at the same level at all schools, the 
opportunity of Negro children in racially concentrated 
schools to obtain equal educational opportunities is 
impaired * * * Barksdale v. Springfield School Com­
mittee, 237 F. Supp. 543, 546 (Mass. 1965), rev’d on 
other grounds, 348 F. 2d 261 (1st Cir. 1965).

(I)t is by now well documented and widely recog­
nized by educational authorities that the elimination of 
racial isolation in the schools promotes the attainment 
of equal educational opportunity and is beneficial to 
all students, both black and white. Lee v. Nyquist, 318 
F. Supp, 710, 714 (W.D.N.Y. 1970), aff’d, 402 U.S. 935.

Therefore, it must be concluded in the words of Judge 
Doyle, that segregation regardless of its cause, is a major 
factor in producing inferior schools and unequal educa­
tional opportunity” (App. 86a).

The net effect of the Brown decision, as these author­
ities show, is that racial segregation—and any form of 
racial classification or separation—constitute discrimina­
tion per se which, if brought about by state action, violates 
the Equal Protection Clause. It is the classification itself 
which violates the constitutional mandate because it nec­



15

essarily creates inequality. Hunter v. Erickson, 393 U.S. 
385, 392 (1969), and cases there cited.

In this case, the record is clear that the school attendance 
districts, as established by the respondent school author­
ities, are racially segregated. Those acts of the respond­
ents that determined the school districts, and the resultant 
segregation, established a racial classification of the very 
kind prohibited by the Fourteenth Amendment, as inter­
preted in the Brown case.

B. R acia l S eg reg atio n  B ro u g h t A b o u t by  S ta te  
A ction  Is a  D en ia l o f E qual P ro tec tion .

1. i f  th e  segrega tion  is caused  b y  s ta te  
action , it is th e  ef f ect  th a t m a tters , 
regard less o f m o tive  or purpose.

As the Brown decision held, state action by legislative 
fiat causing segregated schools is violative of the Four­
teenth Amendment. It is not only legislative action in sup­
port of segregation that is in violation.

Where a Board of Education has contributed and 
played a major role in. the development and growth of 
a segregated situation, the Board is guilty of de jure 
segregation. The fact that such came slowly and sur­
reptitiously rather than by legislative pronouncement 
makes the situation no less evil.

Davis v. School Dist. of the Gittj of Pontiac, 309 F. Supp. 
734, 742 (E.D. Mich., 1970), aff’d, 443 F. 2d 573 (6th Cir. 
1971), cert, denied, 404 U.S. 913 (1971).

The concept of purposeful state action is not limited to 
an intent to cause segregation on the part of state officers.



16

If the action was taken with knowledge of the consequences 
and the consequences were not merely possible hut were 
substantially certain, then the action is wilful and purpose­
ful state action. This concept is well recognized in torts. 
Restatement, Second, Torts §500, comment f; Mountain 
States Telephone and Telegraph Co. v. Horn Tower Con­
struction Co., 147 Colo. 210, 363 P.2d 175, 179 (1961); Com­
monwealth v. Welansky, 316 Mass. 621, 55 N.E. 2d 902, 909 
(1944). It has also been applied in criminal law. People 
v. Conroy, 97 N.Y. 62 (1884).

Furthermore, state action, even if not purposeful, vio­
lates the Constitution if it results in racial separation with 
its resultant inequality. There is no need to show motive, 
ill will or bad faith in invoking the protection of the Four­
teenth Amendment against racial discrimination. Sims v. 
Georgia, 389 U.8. 404, 407-8 (1967). Furthermore, this 
Court has held, in a long line of cases dealing with equal 
protection of the laws, that racial discrimination may be 
established by proof of either purpose or effect. See Yick 
Wo v. Hopkins, 118 U.S. 356 (1886) and, more recently, 
Reitman v. Mulkey, 387 U.S. 369 (1967) and Hunter v. 
Erickson, 393 U.S. 385 (1969). “ It is of no consolation to 
an individual denied the equal protection of the laws that it 
was done in good faith.” Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 725 (1961). Requirements which 
appear neutral on their face and theoretically apply to 
everyone, but have the inevitable effect of tying present 
rights to the discriminatory pattern of the past, are unlaw­
ful. United States v. Louisiana, 380 U.S. 145 (1965).

The concept that it is the effect rather than the intent 
that is of critical importance in assessing governmental



17

behavior with respect to the Fourteenth Amendment was 
applied to a public school desegregation case in a concur­
ring opinion by Circuit Judge Stewart in Clemons v. Board 
of Education of Hillsboro, 228 F.2d 853, 859 (6th Cir. 1956), 
cert, denied, 350 U.S. 1006 (1956):

The Board’s subjective purpose was no doubt, and 
understandably, to reflect the ‘spirit of the community’ 
and avoid ‘racial problems’ as testified by the Superin­
tendent of Schools. But the law of Ohio and the Con­
stitution of the United States simply left no room for 
the Board’s action, whatever motives the Board may 
have had (emphasis supplied).

In areas other than race, this Court has invalidated 
disci’iminatory action by a state despite a lack of evidence 
of purposeful activity. Thus, there was no suggestion of 
intention to inhibit the poor in Harper v. Virginia State 
Board of Elections, 383 U.S. 663 (1966). In the reappor­
tionment cases, this Court held that the motive behind the 
challenged scheme of apportionment was immaterial. Rey­
nolds v. Sims, 377 U.S. 533, 581 (1964). Of. Griffin v. Illi­
nois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 
353 (1963).

It follows that a state may not excuse action placing 
Negro citizens under a severe, unjustifiable disability on 
the ground that the action was inadvertent and without 
discriminatory intent. As Justice Clark said in Kennedy 
Park Homes v. City of Lackawanna, 436 F. 2d 108, 114 (2nd 
Cir. 1970), cert, den., 401 U.S. 1010 (1971): “ Even were 
we to accept the City’s allegation that any discrimination 
here resulted from thoughtlessness rather than a purposeful 
scheme, the City may not escape responsibility for placing 
its black citizens under a severe disadvantage which it



18

cannot justify.” That case involved a suit to compel the 
City of Lackawanna to allow the development of a low- 
income housing project at a certain location in the city. 
Just as the Denver school board, by the way it has drawn 
attendance district lines, has kept the minorities educa­
tionally segregated, the city in Kennedy had effectively kept 
Negroes residentially isolated in one area of the city 
through rezoning and other techniques. The Circuit Court 
called for an end to this course of action and for a conscious 
effort to alleviate segregation.

We submit that the law was correctly stated in Hobson, 
supra (269 F. Supp. at 497) :

Whatever the law was once, it is a testament to our 
maturing concept of equality that, with the help of the 
Supreme Court decisions in the last decade, we now 
firmly recognize that the arbitrary quality of thought­
lessness can be as disastrous and unfair to private 
rights and the public interest as the perversity of a 
wilful scheme.

So, here, the Denver school board cannot argue that it did 
not intend the system to become segregated and unequal. 
If segregation and the resulting inequality exist as a re­
sult of the school board’s failure to remedy the situation, 
the Equal Protection Clause has been violated.

2. The E qua l P ro tection  C lause is v io la ted  if 
th e  s ta te  is e n tw in ed  in th e  m a n a g em en t  
of  a d iscrim in a to ry  program*

State action containing racial classifications outlawed 
by the Equal Protection Clause also arises when the state is 
“ entwined in the management or control” of the private 
enterprise which discriminates. Evans v. Newton, 382 U.S.



19

296, 301 (1966). Or as was stated in a leading case involv­
ing school desegregation, responsibility for discrimination 
arises upon “ state participation through any arrangement, 
management, funds or property.” Cooper v. Aaron, 358 
U.S. 1, 4 (1958).

That this is present in Denver is evident. The school 
board’s every-day operations as well as its long-range plan­
ning show state participation in every aspect of the school 
operations.

The criterion for finding discriminatory state action 
violating the Equal Protection Clause is involvement of the 
state “ to some significant extent” in any of the manifesta­
tions of discrimination. Burton, supra, 365 U.S. at 722 
(1961). This Court said in that case: “ Only by sifting 
facts and weighing circumstances can the nonobvious in­
volvement of the State in private conduct be attributed its 
true significance” (ibid).

The issue in the Burton case was whether the Equal 
Protection Clause was violated by discriminatory action 
of a restaurant which had leased its premises from the 
Wilmington Parking Authority, a public agency. The state 
court held that the restaurant was acting in “ a purely 
private capacity” under its lease, that its action was not 
that of the Parking Authority and was not therefore state 
action within the contemplation of the prohibitions con­
tained in the Fourteenth Amendment. This Court dis­
agreed. After discussing the various activities, obligations 
and responsibilities of the Parking Authority with respect 
to the restaurant, the Court found “ that degree of state 
participation and involvement in discriminatory action



20

which, it was the design of the Fourteenth Amendment to 
condemn” . 365 U.S. at 724. It observed that the Parking 
Authority could have affirmatively required the restaurant 
to discharge the responsibilities under the Fourteenth 
Amendment imposed upon the private enterprise as a con­
sequence of state participation.

This brings the question of so-called “de facto” segre­
gation here into focus. By its activities, the Denver school 
board has allowed and is allowing segregation, with its re­
sultant inequality, to exist in the Denver schools. As in 
Burton, a public authority—the school board—has abdi­
cated its responsibility. The Court there held that the in­
volvement of the state in the discriminatory action of the 
restaurant was significant enough to warrant the conclusion 
that the Authority had violated the Equal Protection 
Clause. Similarly, state support of segregated schools 
through any arrangement, management, funds or property 
cannot be squared with the Amendment’s command that no 
state shall deny to any person within its jurisdiction the 
equal protection of the laws.

3. So -ca lled  e(d e  fa c to ” segrega tion  in p u b lic  
schools co n stitu te s  u n co n stitu tio n a l d iscrim ina­
tion w ith in  th e  scope o f th e  B row n decision.

We submit that a school system where, as a result of a 
segregated residential pattern, white and black pupils gen­
erally attend different schools, amounts to a dual system 
which is in conflict with the Equal Protection Clause as 
interpreted in Brown, supra. This conclusion is rooted in 
language in Brown to the effect that (347 U.S. at 494):

To separate [Negro pupils] from others of similar age 
and qualifications solely because of their race generates



21

a feeling of inferiority as to their status in the com­
munity that may affect their hearts and minds in a way 
unlikely ever to be undone.

The issue before the Court in that case was “ the effect 
of segregation itself on public education” (at 492). The 
Court said (at 493):

We come to the question presented: Does segrega­
tion of children in public schools solely on the basis 
of race, even though the physical facilities and other 
“ tangible” factors may be equal, deprive the children 
of the minority group of equal education opportunities? 
We believe that it does.

As we noted above, the decision had the effect of equat­
ing state action that classified by race with a denial of equal 
protection.

The Court reached this conclusion in the context of 
deliberate imposition of a dual system by the school author­
ities. But it certainly did not hold that the constitutional 
prohibition of racial segregation is limited to segregation 
deliberately imposed by public authority. In fact, this Court 
accepted the finding that ‘ ‘ Segregation of white and colored 
children in public schools has a detrimental effect upon the 
colored children. The impact is greater when it has the 
sanction of the law” (347 U.S. at 494; emphasis added).

This language does not permit the conclusion that this 
Court was drawing a line, for constitutional purposes, 
based on whether the segregation had formal state sanction. 
This conclusion is reenforced by the fact that this Court, 
in concluding that “ separate educational facilities are in­
herently unequal,” relied on authorities that support that



22

conclusion regardless of the origins of the segregation. 347 
U.S. at 494, footnote 11. When the six references in this 
footnote are examined, it appears that, in four of the six, 
nothing limits the finding to the case of deliberate official 
segregation.

The first authority cited is K. B. Clark, “ Effect of 
Prejudice and Discrimination on Personality Development ’ ’ 
(Mid-Century White House Conference on Children and 
Youth, 1950). This is a study showing that existing prac­
tices of segregation and discrimination damage the per­
sonality development of children. Its results do not depend 
in any way on whether the segregation found to be harmful 
has official sanction.

In the second authority, Witmer and Kolinsky, “ Per­
sonality in the Making” (1952, c. YI), the chapter cited is 
entitled, “ The Effects of Prejudice and Discrimination.” 
It is in no way restricted to legally enforced segregation; 
indeed, that concept, is not even considered. On the other 
hand, the harmful effects of the kind of segregation involved 
herein is specifically noted in the following passage (at 
pages 136-7):

Nevertheless, there are rural areas and sections of 
large cities in which Negroes and Mexicans, for ex­
ample, rear their children considerably apart from 
others, and in which tradition gives stability to life. 
For children brought up in such circumstances the 
early stages of personality development are probably 
passed through with relative equanimity, so far, at 
least, as the influence of prejudice and discrimination 
is concerned.



23

Difficulties for children so reared come when they 
leave home or when they move out of the close family 
circle to mingle with other youths in small towns and 
cities. Such a change is likely to take place at adoles­
cence, the time at which a sense of identity should be in 
the making. Sudden exposure to the fact that they 
are not considered as good as other people is very 
disrupting to personality development.

The next two works cited are Deutscher and Chein, 
“ The Psychological Effects of Enforced Segregation: A 
Survey of Social Science Opinion,” 26 J. Psychol. 259 
(1948), and Chein, “ What Are the Psychological Effects of 
Segregation Under Conditions of Equal Facilities” (3 Int, 
J. Opinion and Attitudes Ees. 229 (1949)). These studies 
were concerned only with “ enforced segregation” ; hence, 
they neither support nor negate the proposition that segre­
gation not resulting from official action is likewise harmful.

Brameld, “ Educational Costs,” in Discrimination and 
National Welfare (Mclver, ed,, 1949), 44-48, is similar to 
the first two works cited. This author is particularly con­
cerned with what he describes as “ concomitant learnings.” 
He says (at page 46):

They are learnings that cause boys and girls to de­
velop prejudice, distrust, guilt feelings; that cause 
them to substitute over-simplified, stereotyped thinking 
for honest, particularized thinking about their fellow 
human beings. They are learnings that do not happen 
so much through books as through association on play­
grounds, in corridors, in swimming pools, at parties, in 
the everyday experiences of living association or of 
non-association. (Emphasis supplied.)



24

The author concludes his recommendations for action (page 
48) :

Finally, and perhaps most imperative, let us devel­
op much more closely than we have thus far as an auda­
cious conception of education which flows with the mag­
netic vision of an order in which all people are at last 
equal and free, not merely in theory, hut in every aspect 
of day by day practice.

The portion of the sixth authority cited, Frazier, The 
Negro in the United States (1949), 674-681, is entitled, “ Ef­
fects of Discrimination on the Negro.” It is in no way 
restricted to enforced segregation. Indeed, it contains some 
observations squarely applicable here. Thus, the author 
states (page 677):

One of the truly remarkable phases of race relations 
in the United States is the fact that whites and Negroes 
do not know each other as human beings. * * * Nor has 
the Northern white known the Negro since he has only 
reacted to a different stereotype. White Americans do 
not know Negroes for the simple reason that race prej­
udice and discrimination have prevented normal human 
intercourse between the two races.

The last sentence in the preceding quotation has par­
ticular significance for one aspect of this case. The school 
board has suggested that the separation of Negro and white 
children in Denver schools is merely the unfortunate result 
of race prejudice and discrimination, manifest in the form 
that restricts Negroes in the sale and rental of housing. 
As Frazier makes clear, the resulting segregation is harm­
ful. The Brown decision in turn establishes that this harm 
is compounded when the pattern of segregation extends to 
the public schools.



25

School authorities have the obligation to avoid or mini­
mize the harmful effects of school segregation. This ob­
ligation is an important factor to be considered in estab­
lishing construction policies and attendance zones. This 
the Denver school board has clearly failed to do. It is 
hardly reasonable to suggest that the Negro children in the 
Denver schools must continue to suffer the resulting harm 
merely because the school board did not expressly order 
that they go to segregated schools.*

Frequently the distinction is made between segregation 
imposed by the school board and segregation merely toler­
ated by the school board. But it is neither just nor sensible 
to proscribe segregation having its basis in affirmative state 
action while at the same time failing to provide a remedy 
for segregation which grows out of discrimination in hous­
ing, or other economic or social factors.

The students involved in this action are in a publicly 
supported, mandatory state educational system. They 
must have the civil right not to be segregated, not to be 
compelled to attend a school in which all of the Negro chil­
dren are educated separate and apart from anywhere from 
70% to 99% of their white contemporaries.

The Denver situation is segregation by law, the law of 
the school board. It formulates attendance policies; it 
makes decisions as to school sites; it assigns teachers to

* School authorities “have the affirmative duty under the Four­
teenth Amendment to bring about an integrated, unitary school sys­
tem in which there are no Negro schools and no white schools—just 
schools. ̂  Expressions in our early opinions distinguishing between 
integration and desegregation must yield to this affirmative duty being 
now recognized.” US. v. Jefferson County Board of Education 380 
F.2d 385, 389 (5th Cir. 1967), cert, den., 389 U.S. 840.



26

various schools. In light of Judge Doyle’s findings, the 
continuance of the board’s policies amounts to nothing less 
than state-imposed segregation.

The lower Federal and state courts have increasingly 
recognized that whatever a school system does is state 
action and that “ de facto” is a term used to justify avoid­
ance by school boards of their responsibilities. Cf. Barks­
dale, supra; Hobson, supra; Blocker v. Board of Education 
of Manhasset, 226 F. Supp. 208 (E.D.N.Y. 1964); Jackson v. 
Pasadena City School District, 59 Cal. 2d 871, 31 Cal. Eptr. 
606, 382 P. 2d 878 (1963); Branche v. Board of Education 
of Hempstead, 204 F. Supp. 150 (E.D.N.Y. 1962); Booker 
v. Board of Education of Plainfield, 45 N.J. 161, 212 A. 2d 1 
(1965); Brewer v. School Board of the City of Norfolk, 397 
F. 2d 37 (4th Cir. 1968); Spangler v. Pasadena City Board 
of Education, 311 F. Supp. 501 (C.D. Cal. 1970), aff’d 427 
F. 2d 1352 (9th Cir. 1970); Crawford v. Board of Education 
of the City of Los Angeles, Civil Docket No. 822-854 (Su­
perior Court for County of Los Angeles, Feb. 11, 1970); 
Bradley v. Milliken, 433 F. 2d 897 (6th Cir. 1970), 438 F. 2d 
945 (6th Cir. 1971), Civil Action No. 35257 (E.D. Mich. 
Sept. 27, 1971).

The Blocker case, supra, involved the action of a school 
board in New York in simply continuing an attendance 
pattern wherein all of the black elementary school children 
went to one school while virtually all of the white elemen­
tary school children attended two others. The Court said 
(226 F.Supp. at 223):

The Fourteenth Amendment does not cease to operate 
once the narrow confines of the Brown-type situation 
are exceeded; the Supreme Court has made it clear that



27

it is the duty of the courts to interdict “ evasive 
schemes for segregation whether attempted ‘ingenious­
ly or ingenuously.’ ” Cooper v. Aaron, 358 U.S. 1, 17, 
78 S.Ct. 1401, 1409, 3 L.Ed. 2d 5 (1958), and has reaf­
firmed that objective in a recent decision on the subject. 
See Goss v. Knoxville Board of Education, 373 TJ.S. 683, 
83 S.Ct. 1405, 10 L.Ed. 2d 632 (1963). Viewed in this 
context then, can it be said that one type of segregation, 
having its basis in state law or evasive schemes to 
defeat desegregation, is to be proscribed, while another, 
having the same effect but another cause, is to be con­
doned? Surely, the Constitution is made of sturdier 
stuff.

The recent decision in Spencer v. Kugler, 326 F. Supp. 
1235 (N.D. N.J. 1971), aff’d without opinion, 92 S. Ct. 707 
(1972), might be viewed as inconsistent with this trend, 
since its effect was to leave a segregation situation undis­
turbed. However, Spencer is distinguishable from the in­
stant case on two points. First, plaintiffs there sought to 
impose a state-wide desegregation plan across city and dis­
trict lines. The court held that municipal lines were a rea­
sonable standard for setting up school districts. 326 
F.Supp. at 1240. Plaintiffs in the instant case are concerned 
with one district and one municipality only. Secondly, 
plaintiffs in Spencer sought to establish racial balance in the 
schools. Plaintiffs in the instant case are not seeking this. 
They do not ask for a certain ratio of black and white 
children but only the elimination of segregated schools.

More consistent with the current trend in the lower 
courts is the recent case of Davis, supra, which resembled 
more clearly the case at bar. The school board in Pontiac 
had engaged in a series of discriminatory practices, such as 
placing teachers in schools according to race and locating



28

new schools in such a manner so as to perpetuate existing 
segregation rather than remedy it. The court ruled that 
school districts may be held accountable for the natural, 
probable and foreseeable consequences of their policies and 
practices and that, where racially identifiable schools are 
the result of such policies, the school authorities bear the 
burden of showing that the policies are based on educa­
tionally required, nonracial considerations.

P O I N T  T H R E E

Any desegregation plan must encompass the entire 
school district and not merely isolated schools.

The outgoing Denver school hoard recognized serious 
deficiencies in many of the Denver schools, particularly the 
existence of segregation throughout most of the system. 
As a corrective measure the board passed Resolutions 1520, 
1524 and 1531. The new board rescinded those plans but 
the District Court ordered them reinstated (App. 44a).

Amici urge that these plans, even if put into effect, are 
insufficient because they focus on only the all- or virtually 
all-Negro and Hispano schools.

In Alexander v. Holmes County Board of Education, 
396 U.S. 19, 21 (1969), this Court noted that desegregation 
plans must be designed to insure “ a totally unitary school 
system for all eligible pupils without regard to race or 
color.” A system can he said to be unitary when the 
schools are no longer racially identifiable. Robinson v. 
Shelby County Board of Education, 330 F. Supp. 837 (W.D.



29

Tenn. 1971). There are virtually two separate school sys­
tems within the Denver school district. Judge Doyle noted 
that at least fifteen schools had Negro-Hispano populations 
of over 70'% (App. 76a). Moreover, 73.5% of all the white 
students in the system attend schools which are over 75% 
white (Pet. for Cert. p. 4). These schools are racially 
identifiable and, surely, a system-wide solution is called for.

Even historically separate school districts, where shown 
to be created as part of a state-wide dual school system or 
to have cooperated in the maintenance of such a system, 
have been treated as one for purposes of desegregation. 
Haney v. County Board of Education of Sevier County, 410 
P. 2d 920 (8th Cir. 1969); United States v. Crockett County 
Board of Education, Civ. Action 1663 (W.D. Term., May 
15, 1967). The situation in Denver is tantamount to a dual 
system within the same district. Hence, it is more clearly 
necessary to treat its schools uniformly.

A further example is the case of Pate v. Bade County 
School Board, 434 F. 2d 1151,1153 (5th Cir. 1970), cert. den. 
402 IT.S. 953 (1971), where a desegregation plan which left 
twenty-two schools all- or virtually all-Negro was found 
“ unacceptable”. The case is analogous to Denver because 
the solution proposed by Judge Doyle would leave the 
schools in northeast Denver all- or virtually all-Negro and 
Hispano.

In United States v. Watson Chapel School District No. 
M, 446 F. 2d 933 (8th Cir. 1971), a freedom of choice plan 
was found unconstitutional where 94% of Negroes stayed 
in all-Negro schools. The Denver percentage may not be 
quite as high, but the principle is the same.



30

When this Court issued its decision in the Brown case, 
applicable to four separate school systems, it did not direct 
the lower courts to search the record to determine which 
part of each system had been affected by the statutorily 
imposed requirement of segregation. It was taken for 
granted that the corrective measures to be imposed would 
apply to each system as a whole. Since then, desegregation 
cases, whether de jure or de facto, have resulted in system- 
wide desegregation plans. See, e.g., Davis v. School District 
of City of Pontiac, supra; Dandridge v. Jefferson Parish 
School Board, 332 F. Supp. 590 (E.D. La. 1971).

The principle that arises out of the cases cited above, 
we submit, is that the pool of resources for the correction 
of unconstitutional segregation in a school district is the 
whole district—not just the particular part where the im­
pact of a segregation policy was shown. If correction of 
past illegal segregation cannot be achieved without involv­
ing the whole district, the whole district must he involved.

This is fully borne out by this Court’s most recent deci­
sion on the scope of remedy in desegregation cases, Davis 
v. Board of School Commissioners of Mobile County, 402 
IT.S. 33 (1971). That case involved a challenge to a desegre­
gation plan which treated the City of Mobile as if it were 
two cities. The eastern portion of Mobile had a 94% Negro 
population and the schools were 65% Negro; in the western 
part of the city, the schools were 88% white. The desegre­
gation plan treated each area separately, leaving nine ele­
mentary schools in the east 90% Negro and over half of the 
junior high and senior high school Negro students in all- or 
virtually all-Negro schools. This Court said (at 38) :



31

On the record before ns, it is clear that the Court of 
Appeals felt constrained to treat the eastern part of 
metropolitan Mobile in isolation from the rest of the 
school system, and that inadequate consideration was 
given to the possible use of bus transportation and split 
zoning. For these reasons, we reverse the judgment of 
the Court of Appeals as to the parts dealing with stu­
dent assignment, and remand the case for the develop­
ment of a decree “ that promises realistically to work 
and promises realistically to work now.” Green v. 
County School Board, 391 U.S. 430, 439 (1968).

There is nothing novel about the concept that measures 
designed to remedy racial discrimination may appropriate­
ly apply to all of the operations of the discriminator. Ad­
ministrative agencies enforcing antidiscrimination laws do 
not confine their remedial orders to the narrow area affected 
by a particular act of discrimination. The owner of an 
apartment house who has illegally denied an apartment to 
an applicant because of his race is not told merely to stop 
discriminating with respect to that apartment. He is 
barred from discriminating with respect to the entire build­
ing. Normally, indeed, he must keep the antidiscrimination 
agency advised of vacancies in other apartments so as to 
ensure that the complainant or other applicants of the same 
race are given an opportunity to obtain suitable accommo­
dations. Analogous procedures are used in the case of an 
employer who violates a fair employment law. His entire 
payroll is reviewed and kept under supervision to ensure 
that the administrative agency’s corrective order effectively 
terminates discrimination throughout the operation.

So, here, effective action against the unconstitutional 
discrimination found by the trial court requires action deal­
ing effectively with segregation throughout the school sys­



32

tem operated by the respondents. Nothing less, we submit, 
would achieve desegregation.

Desegregation orders rest on the conclusion, aptly stated 
by Judge Wright in Hobson, supra (269 F. Supp. at 504-5) 
that:

Segregation “ perpetuates the barriers between the 
races; stereotypes, misunderstandings, hatred, and the 
inability to communicate are all intensified.” (Foot­
note omitted.) Education, which everyone agrees 
should include the opportunity for biracial experiences, 
carries on, of course, in the home and neighborhood as 
well as at school. In this respect, residential segrega­
tion, by ruling out meaningful experiences of this type 
outside of school, intensifies, not eliminates, the need 
for integration within school.

We submit that comprehensive segregation would not be 
the result of the plan for the City of Denver approved by 
the court below. The result will be, rather, continued seg­
regation and the maintenance of all-Negro and all-white 
schools. We believe that, for the reasons stated above, this 
Court should not stop short of a solution that encompasses 
the entire Denver school system.

Conclusion
Even on the narrowest grounds, this Court should re­

verse the Court of Appeals. There is clear evidence here 
of unequal facilities in at least 15 of the Denver public 
schools and, under any standard of Equal Protection, these 
schools require remedial attention.

But this case goes farther than that. Nearly 18 years 
ago, this Court condemned racial segregation in public



33

education and ordered its elimination. These rulings dealt 
with the hard fact that Negro students in predominantly 
Negro schools get an education which is inferior to the 
education which they would receive, and which white stu­
dents do receive, in schools that are integrated or pre­
dominantly white.

Whom are we dealing with here! In Denver, we are 
dealing largely with children in grades kindergarten 
through 6, i.e. from age 5 to 12. They are not capable of dis­
tinguishing between the total separation of all Negroes 
pursuant to a State statute based on race and the almost 
identical situation prevailing in their schools by reason of 
school districting and other policies followed by respond­
ents. Simply stated, amici urge this Court to recognize that 
the operation of a public school system is state action and 
that, when a school system tolerates separation of the races 
and the resulting offering of inferior education, there is a 
denial of equal protection to the isolated minority group 
students.

We urge this Court that it is time to declare that, as to 
schools operated by public agencies, there is no such thing 
as de facto segregation. The segregation in the Denver 
schools stems from state action in one form or another. 
‘"Be facto” is merely a term invented to justify school 
boards in ignoring the racial consequences of their actions.

Approval now of the de facto-de jure distinction would 
undermine 18 years of progress in the educational field 
since Brown. It would defeat attainment of the goal im­
plicit in this Court’s decisions since Brown—to protect 
school children and offer them as equal an education as 
possible within a given district. The statutes and regula­
tions explicitly requiring dual systems have disappeared.



34

Yet segregated and therefore unequal educational opportu­
nities within the same city and within the same districts still 
exist. And they exist despite the knowledge by local school 
boards that their actions intentionally or inadvertently, but 
necessarily, maintain and widen the educational gap be­
tween the races. This Court can make it clear in this case 
that the Constitution bars this manifestation of inequality 
in public affairs, as it bars all others.

For the reasons stated above, we respectfully sub­
mit that the decision below should be reversed.

Respectfully submitted,
A rnold F orster 
P aul H artman 
315 Lexington Avenue 
New York, New York 10016 

Attorneys for Anti-Defamation 
League of B ’nai B With

P aul S. B erger 
J oseph B. R obison 
15 Bast 84th Street 
New York, New York 10028 

Attorneys for 
American Jewish Congress

Samuel R abinove 
165 East 56th Street 
New York, New York 10022 

Attorney for
American Jewish Committee

E dward N. L eavy 
S tuart R. S haw 
R oy A. J acobs

Of Counsel

May, 1972



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