|Keyes v. School District No. 1, Denver, Colorado
[ Brennan ]
[ Douglas ]
[ Powell ]
[ Rehnquist ]
Keyes v. School District No. 1, Denver, Colorado
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MR. JUSTICE REHNQUIST, dissenting.
The Court notes at the outset of its opinion the differences between the claims made by the plaintiffs in this case and the classical "de jure" type of claims made by plaintiffs in cases such as Brown v. Board of Education, 347 U.S. 483 (1954), and its progeny. I think the similarities and differences, not only in the claims, but in the nature of he constitutional violation, deserve somewhat more attention than the Court gives them.
In Brown, the Court held unconstitutional statutes then prevalent in Southern and border States mandating that Negro children and white children attend separate schools. Under such a statute, of course, every child in the school system is segregated by race, and there is no racial mixing whatever in the population of any particular school.
It is conceded that the State of Colorado and the city of Denver have never had a statute or ordinance of that description. The claim made by these plaintiffs, as described in the Court's opinion, is that the School Board, by "use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy," took race into account in making school assignments in such a way as to lessen that mixing of races which would have resulted from a racially neutral policy of school assignment. If such claims are proved, those minority students who, as a result of such manipulative techniques, are forced to attend schools other than those that they would have attended had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right to equal protection of the laws just as surely as were the plaintiffs in Brown v. Board of Education by the statutorily required segregation in that case. But the fact that invidious [p255] racial discrimination is prohibited by the Constitution in the North, as well as the South, must not be allowed to obscure the equally important fact that the consequences of manipulative drawing of attendance zones in a school district the size of Denver does not necessarily result in denial of equal protection to all minority students within that district. There are significant differences between the proof which would support a claim such as that alleged by plaintiffs in this case and the total segregation required by statute which existed in Brown.
The Court's opinion obscures these factual differences between the situation shown by the record to have existed in Denver and the situations dealt with in earlier school desegregation opinions of the Court. The Court states, ante at 200, that
[w]e have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that, where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483"]347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty "to effectuate a transition to a racially nondiscriminatory school system," 347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty "to effectuate a transition to a racially nondiscriminatory school system," Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II). . . .
That statement is, of course, correct in the Brown context, but, in the Brown cases and later ones that have come before the Court, the situation which had invariably obtained at one time was a "dual" school system mandated by law, by a law which prohibited Negroes and whites from attending the same schools. Since, under Brown, such a law deprived each Negro child of the equal protection of the laws, there was no need to prove "the [p256] elements of de jure segregation as to each and every school," since the law itself had required just that sort of segregation.
But in a school district the size of Denver's, it is quite conceivable that the School Board might have engaged in the racial gerrymandering of the attendance boundary between two particular schools in order to keep one largely Negro and Hispano, and the other largely Anglo, as the District Court found to have been the fact in this case. Such action would have deprived affected minority students who were the victims of such gerrymandering of their constitutional right to equal protection of the laws. But if the school board had been evenhanded in its drawing of the attendance lines for other schools in the district, minority students required to attend other schools within the district would have suffered no such deprivation. It certainly would not reflect normal English usage to describe the entire district as "segregated" on such a state of facts, and it would be a quite unprecedented application of principles of equitable relief to determine that, if the gerrymandering of one attendance zone were proved, particular racial mixtures could be required by a federal district court for every school in the district.
It is quite possible, of course, that a school district purporting to adopt racially neutral boundary zones might, with respect to every such zone, invidiously discriminate against minorities, so as to produce substantially the same result as was produced by the statutorily decreed segregation involved in Brown. If that were the case, the consequences would necessarily have to be the same as were the consequences in Brown. But, in the absence of a statute requiring segregation, there must necessarily be the sort of factual inquiry which was unnecessary in those jurisdictions where racial mixing in the schools was forbidden by law. [p257]
Underlying the Court's entire opinion is its apparent thesis that a district judge is at least permitted to find that, if a single attendance zone between two individual schools in the large metropolitan district is found by him to have been "gerrymandered," the school district is guilty of operating a "dual" school system, and is apparently a candidate for what is in practice a federal receivership. Not only the language of the Court in the opinion, but its reliance on the case of Green v. County School Board, 391 U.S. 430, 437-438 (1968), indicates that such would be the case. It would therefore presumably be open to the District Court to require, inter alia, that pupils be transported great distances throughout the district to and from schools whose attendance zones have not been gerrymandered. Yet, unless the Equal Protection Clause of the Fourteenth Amendment now be held to embody a principle of "taint," found in some primitive legal systems but discarded centuries ago in ours, such a result can only be described as the product of judicial fiat.
Green, supra, represented a marked extension of the principles of Brown v. Boar of Education, supra. The Court in Green said:
It is, of course, true that, for the time immediately after Brown II [349 U.S. 294], the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. . . . Under Brown II, that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about. . . .
391 U.S. at 435-436. Brown II was a call for the dismantling of well entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise [p258] which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.
Id. at 437-438.
The drastic extension of Brown which Green represented was barely, if at all, explicated in the latter opinion. To require that a genuinely "dual" system be disestablished, in the sense that the assignment of a child to a particular school is not made to depend on his race, is one thing. To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else.
The Court's own language in Green makes it unmistakably clear that this significant extension of Brown's prohibition against discrimination, and the conversion of that prohibition into an affirmative duty to integrate, was made in the context of a school system which had for a number of years rigidly excluded Negroes from attending the same schools as were attended by whites. Whatever may be the soundness of that decision in the context of a genuinely "dual" school system, where segregation of the races had once been mandated by law, I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver.
The Court's opinion gives lip service to the notion that the inquiry as to whether or not the Denver school district was "segregated" is a factual one, though it refers [p259] in various critical language to the District Court's refusal to find that minority concentration in the core area schools was the result of discriminatory action on the part of the school board. The District Court is said to have "fractionated" the district, ante at 193, and to have "held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city," ibid. It is difficult to know what the Court means by the first of these references, and even more difficult to justify the second in the light of the District Court's opinion.
If, by "fractionating" the district, the Court means that the District Court treated together events that occurred during the same time period, and that it treated those events separately from events that occurred during another time span, this is undoubtedly correct. This is the approach followed by most experienced and careful finders of fact.
In commencing that part of its comprehensive opinion which dealt with the "core area" schools, the District Court observed:
The evidentiary as well as the legal approach to the remaining schools is quite different from that which has been outlined above. For one thing, the concentration of minorities occurred at an earlier date and, in some instances, prior to the Brown decision by the Supreme Court. Community attitudes were different, including the attitudes of the School Board members. Furthermore, the transitions were much more gradual and less perceptible than they were in the Park Hill schools.
313 F.Supp. 61, 69. (Emphasis supplied.)
The District Court noted, in its opinion of July 31, 1969, the differentiation that the plaintiffs themselves had made between the so-called "Park Hill" schools and [p260] the "core area" schools. The plaintiffs had sought a preliminary injunction prohibiting the school board from rescinding three resolutions which had been adopted by a differently composed school board earlier in 1969 and which would have redrawn school boundary lines in the Park Hill area to achieve greater integration. In its opinion granting that injunction, the District Court said:
Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill. The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years. The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called "Five Points." Before 1950, the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east, and 38th Avenue on the north. The schools in this area were, and are now, largely Negro schools. However, we are not presently concerned with the validity of this condition. During this period, the Negro population was relatively small, and this condition had developed over a long period of time. However, by 1960 and, indeed, at the present time this population is sizeable. As the population has expanded, the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridor -- more or less fixed north-south boundaries. The migration caused these areas to become substantially Negro and segregated.
303 F.Supp. 279, 282.
Further reference to the District Court's several opinions [p261] shows that the allegedly discriminatory acts of the School Board in the Park Hill area occurred between 1960 and 1969, in the context of a steadily expanding Negro school population in the Park Hill area and heightened sensitivity on the part of the community to the problems raised by integration and segregation.
The allegedly discriminatory acts with respect to the "core area" schools -- New Manual High School, Cole Junior High School, Morey Junior High School, and Boulevard and Columbine Elementary Schools -- took place between the years 1952 and 1961. They took place, as indicated by the references to the District Court's opinion noted above, not in a context of a rapidly expanding Negro population, but in a context of a relatively fixed area of the city that had for an indefinite period of time been predominantly Negro.
Thus, quite contrary to the intimation of virtual arbitrariness contained in the Court's opinion, the District Court's separate treatment of the claims respecting these two separate areas was absolutely necessary if a careful factual determination, rather than a jumbled hash of unrelated events, was to emerge from the factfinding process. The "intent" with which a public body performs an official act is difficult enough to ascertain under the most favorable circumstances. See Palmer v. Thompson, 403 U.S. 217 (1971); McGinnis v. Royster, 410 U.S. 263 (1973). Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years. Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections. Indeed, it was as a result of the 1969 election for membership on the Denver School Board that the Board's policy which had previously favored the correction of racial imbalance by [p262] implementation of resolutions was reversed by the election of new members to the Board.
These difficulties obviously do at mean that the inquiry must be abandoned, but they do suggest that the care with which the District Court conducted it in this case is an absolutely essential ingredient to its successful conclusion.
The Court's bald statement that the District Court
held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city
is flatly belied by the following statement in the District Court's opinion:
Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are, in fact, a substantial factor in causing a present segregated situation.
313 F.Supp. at 775, n. 18.
Thus, it is apparent that the District Court was fully aware that it might take into consideration the intention with which it found the School Board to have performed one act in assessing its intention in performing another act. This is the most that the references in the Court's opinion to evidentiary treatises such as Wigmore and McCormick support. And it should be noted that the cases cited by the Court, and by the authors of the treatises, almost invariably deal with the intention of a particular individual or individuals, and not with the "intention" of a public body whose membership is constantly changing.
The Court's opinion totally confuses the concept of a permissible inference in such a situation, of which the District Court indicated it was well aware, with what [p263] the Court calls a "presumption," which apparently "shifts . . . the burden of proving" to the defendant school authority. No case from this Court has ever gone further in this area than to suggest that a finding of intent in one factual situation may support a finding of fact in another related factual situation involving the same factor, a principle with which, as indicated above, the District Court was thoroughly familiar.
The District Court cases cited by the Court represent almost entirely the opinions of judges who were themselves finders of fact, concluding as a part of the factfinding process that intent with respect to one act may support a conclusion of a like intent with respect to another. This is but a restatement of the principle of which the District Court showed it was aware. And, obviously, opinions of courts of appeals upholding such findings of the District Court do not themselves support any broader proposition than do the opinions of the District Court in question.
Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (CA4 1966), and North Carolina Teachers Assn. v. Asheboro City Board of Education, 393 F.2d 736 (CA4 1968), involved a background of segregation by a law in the State of North Carolina and "the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation." 364 F.2d at 192. The courts held that the decimation in the ranks of the Negro teachers while white teachers were unaffected, raised an inference of discrimination which cast upon the school board the burden of justifying such decimation. In each case, the school board had offered virtually no evidence supporting any nondiscriminatory basis for the result reached. The cases are thus wholly different in their factual background from the case now before the Court. [p264]
Also worthy of note is the fact that neither in Chambers nor in Asheboro did the Court of Appeals remand for a further hearing, but in effect ordered judgments for the appellants on the issues considered. This amounted to a determination that the factual finding of the District Court on that issue was "clearly erroneous," and the statement as to presumption was a statement as to the appellate court's method of evaluating the factual finding. This Court is in quite a different position in reviewing this case, with the factual finding of the District Court having been affirmed by the Court of Appeals for the Tenth Circuit, than was the Court of Appeals for the Fourth Circuit in reviewing the factual findings of the District Courts that were before it in Chambers and in Asheboro. Indeed, it would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals.
A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error.
Comstock v. Group of Institutional Investors, 335 U.S. 211, 214 (1948).
The Court, doubtless realizing the difficulty of justifying an outright reversal, instead remands for further factual determination under newly enunciated standards governing the evidentiary treatment of the finding as to Park Hill by the District Court. These standards call in some parts of the opinion for establishing a presumption, in other parts for shifting the burden of proof, and in other parts for recognizing a prima facie case. Quite apart from my disagreement with the majority on its constitutional law, I cannot believe it is a service to any of the parties to this litigation to require further factual determination under such a vague and imprecise mandate. But, more fundamentally, I believe that a District Judge thoroughly sympathetic to the plaintiffs' claims gave them the full evidentiary hearing to which [p265] they were entitled and carefully considered all of the evidence before him. He showed full awareness of the evidentiary principle that he might infer from the "segregative intent" with which he found the Board to have acted in the Park Hill area a like intent with respect to the core area, but he deliberately declined to do so. This was his prerogative as the finder of fact, and his conclusion upon its affirmance by the Court of Appeals is binding upon us.
The Court has taken a long leap in this area of constitutional law in equating the district-wide consequences of gerrymandering individual attendance zones in a district where separation of the races was never required by law with statutes or ordinances in other jurisdictions which did so require. It then adds to this potpourri a confusing enunciation of evidentiary rules in order to make it more likely that the trial court will on remand reach the result which the Court apparently wants it to reach. Since I believe neither of these steps is justified by prior decisions of this Court, I dissent.