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United States v. Board of School Commissioners of

decided: February 1, 1973.


Knoch, Senior Circuit Judge, and Fairchild and Pell, Circuit Judges.

Author: Pell

PELL, Circuit Judge.

This is an appeal from an order*fn1 by the district court finding that the Board of School Commissioners for the School City of Indianapolis, Indiana ("School City")*fn2 had been following a course of de jure segregation in violation of the holding of the Supreme Court in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (Brown I). On the basis of this finding, the district court determined as a conclusion of law that it had authority to order the School City to take "affirmative action" to convert to a unitary system.*fn3 The district court, as trier of fact, made detailed findings of fact to support the ultimate finding of de jure segregation and we shall not attempt to recapitulate those findings, except where specifically required. We do note, however, that the court specifically found that (1) on May 17, 1954 (the date of the decision in Brown I), the School Board was operating a dual school system, that is, it was found to have had a "deliberate policy of segregating minority (Negro) students from majority (white) students," and (2) that the Board had not changed its policies so as to eliminate such de jure segregation on or before May 31, 1968 (the date on which the Government filed its complaint), 332 F. Supp. at 658.

Before turning to appellants' contentions, we first enunciate a few general principles on which the opinion of this court is based. In order to support a finding of de jure segregation, it is not necessary that there be a complete separation of the races. Certainly school systems totally segregated by force of a state law have been found to violate Brown I, but other districts in which segregation has been only partially effective (that is, in which there are some integrated schools) have been held to be equally in violation. See Davis v. School District of City of Pontiac, Inc., 309 F. Supp. 734, 740 (E.D.Mich.1970), aff'd, 443 F.2d 573 (6th Cir. 1971); United States v. Board of Education, Independent School District No. 1, Tulsa County, Oklahoma, 429 F.2d 1253 (10th Cir. 1970). Further, the actions of the Board of School Commissioners and its duly-appointed representatives and agents may be sufficient to constitute de jure segregation without being based on a state law, or even if they are in derogation of state law forbidding segregation.*fn4 See Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990 (10th Cir. 1971), cert. granted, 404 U.S. 1036, 92 S. Ct. 707, 30 L. Ed. 2d 728 (1972); Bradley v. Milliken, (6th Cir., filed Dec. 8, 1972) (slip op. at pp. 49-50).

Another principle which comes into play in examining the district court's opinion relates to the affirmative duty placed on a school board "to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board of New Kent County, 391 U.S. 430, 437-438, 88 S. Ct. 1689, 1694, 20 L. Ed. 2d 716 (1968). This affirmative duty attaches to any school system guilty of de jure segregation at the date it became illegal under Brown I, May 17, 1954. Thus, we reject the distinction, proposed in the district court by the amicus curiae, between violation (initial, e.g., Brown I) cases and remedial (enforcement, e.g., Brown II) cases, for a court in a remedial case when it is considering what remedy to order looks to the same factors as it did when it determined that there was a violation of the mandate of Brown I. A school board, after years of de jure segregation, cannot blithely say that it has become "color blind" the day before a suit is filed and thereby avoid liability. As the Supreme Court recognized in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971), not all "invidious racial distinctions" are readily eliminated. It is in this sense clear that factors viewed as being reflective of de jure segregation in remedial cases would be similarly significant in the initial determination of whether or not there has been a violation of constitutional rights. It is in this way that the remedial cases are relevant to the present case.

On this appeal, defendants basically present two arguments: first, that the district court erred as a matter of law in basing its finding of de jure segregation on the evidence of mere racial imbalance in the schools, and second, that the district court's finding that segregation resulted from the School Board's actions, and therefore was de jure, was clearly erroneous. Although the first point might appear to be subsumed in the second, there is a distinction between the two as the second assumes, arguendo, that the district court did not make the mistake claimed in the first point.

Appellants first assert that there is no constitutional duty to remedy the effects of racial imbalance or to maintain any particular racial balance in the public schools. The Government does not quarrel with this assertion, and, indeed, insofar as it relates to purely de facto segregation, unaided by any state action, it is the law of this circuit, Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), aff'g 213 F. Supp. 819 (N.D.Ind.1963). The Board contends that since no student since Brown I has ever been compelled to go to a school because of his race nor denied admission to a school because of race, the racial imbalance presented in the record cannot support a finding of de jure segregation. In sum, appellants seek to portray this case as one of de facto segregation only, and argue that there is no duty to alleviate such racial imbalance which the Board did not cause. Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966); Bell v. School City of Gary, supra.

The difficulty with this line of reasoning is that it does not comport with the findings of fact of the district court. As Judge Kiley has said for this court,

"The weakness in this argument is that the district court did not find that defendants inherited an innocent de facto segregation situation, but found that they inherited from their predecessors a discriminatorily segregated school system which defendants subsequently fortified by affirmative and purposeful policies and practices which effectually rendered de jure the formerly extant de facto segregation. . . . This is not a case of mere 'inaction' under the court's finding of the unlawful actions of the Board." United States v. School District 151 of Cook County, Illinois, 404 F.2d 1125, 1131 (7th Cir. 1968).

The present case -- in which, as will be discussed below, the district court found gerrymandering of districts, segregation of faculty, and other indicia of a dual system -- stands in marked contrast to the Deal and Bell cases, above, where the district courts made specific findings of no such discriminatory practices by the boards.*fn5 Similarly, the present case is unlike Banks v. Muncie Community Schools, 433 F.2d 292 (7th Cir. 1970), where the court remarked that the record failed to disclose evidence of either racial motivation in board policies or a history of racial segregation from which such motivation might be inferred. Here, the district court commented extensively on both aspects in its opinion.

But appellants point to the language in the Supreme Court's opinion in Swann, supra, 402 U.S. at 24-25, 91 S. Ct. 1267, which states that a particular racial balance is not necessary in each school and that one-race schools may be acceptable. They extrapolate from this that, since the only evidence before the trial judge was that of racial imbalance, the holding must be clearly erroneous, Rule 52(a), Fed.R.Civ.P. Our review of the record and the district court's opinion convinces us that this contention cannot be sustained. What the district court's opinion relates is a pattern of decision-making which it determined reflected a successful plan for de jure segregation. Although it might not be possible to infer the requisite discriminatory intent from any one instance or example in the record, it is clear that the district court found a purposeful pattern of racial discrimination based on the aggregate of many decisions of the Board and its agents. See Davis v. School District of the City of Pontiac, Inc., 443 F.2d 573, 576 (6th Cir. 1971).

The appellants deny any conscious motivation on the part of their predecessors or themselves to foster, or even continue, segregation policies in the school system; however, in examining that which was in existence at the time of Brown I and that which transpired thereafter, the courts are not precluded from drawing the normal inference of intent from consciously consummated acts. Intent, in this sense, may or may not be consistent with expressed motivation.

There is no doubt that the statistics as to the extreme racial imbalance in various schools, especially those schools previously segregated by state law until 1949, was one of the factors which the district judge considered. But even though no particular racial balance is per se necessary, Swann does not say that such imbalance may not be considered as one factor from which the district court may infer a segregatory intent.

Inasmuch as our review of the district court's order, as discussed hereinafter, reflects that the racial imbalance was only one factor considered by the district court, we reject appellants' first contention that the finding of de jure ...

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