UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: June 20, 1977.
LINDA F. COATES, ET AL., PLAINTIFFS-APPELLANTS,
ILLINOIS STATE BOARD OF EDUCATION, ET AL., DEFENDANTS-APPELLEES
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75-C-3362 - John F. Grady, Judge.
Cummings, Pell and Tone, Circuit Judges.
CUMMINGS, Circuit Judge.
On October 8, 1975, plaintiff school children and their parents filed this school desegregation action on behalf of the class of all black citizens who reside within the geographical boundaries of certain school districts in Rockford, Peoria and Joliet, Illinois. Named as defendants were the Illinois Office of Education, the Illinois State Superintendent of Education, individual members of the Illinois State Board of Education (the three groups collectively termed the "state defendants"), the various school districts, the Superintendent of these school districts, the geographically pertinent Regional Boards of School Trustees, the Superintendents of these Regional Boards and the individual members of the Regional Boards. The complaint asserts subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(3). The Thirteenth and Fourteenth Amendments as well as Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) are pleaded as causes of action under the 28 U.S.C. § 1331 subject-matter jurisdictional fount, and three provisions of the Civil Rights Acts of 1866, 1870 and 1871, 42 U.S.C. §§ 1981, 1983, 1988,*fn1 are pleaded in conjunction with the 28 U.S.C. § 1343(3) jurisdictional grant. A pendent state action under the Armstrong Act is also alleged. 1975 Ill. Rev. Stats. ch. 122, § 10-21.3
The complaint seeks a declaratory judgment under 28 U.S.C. § 2201 that plaintiffs' constitutional rights have been violated, as well as an injunction against future violation. In addition, the plaintiffs ask that the expenditure of all federal funds by the Peoria, Rockford and Joliet school districts be enjoined pendente lite. Finally, the complaint prays that $50,000 damages be jointly and severally assessed against the individual defendants.
The response of the defendants to the complaint was mixed. Several defendants filed motions to dismiss for failure to state a claim and others answered the complaint. On August 3, 1976, the trial court held that the case failed to state a claim upon which relief could be granted "because this complaint does not allege that the underlying condition of school segregation was caused, in whole or in part, by any purposeful action of any of the defendants * * *" (419 F. Supp. at 27). The cause was dismissed with prejudice. Judge Grady also expressed advisory views on the impropriety of joinder of separate school districts in one action. He further indicated that "the very fact of the separate districts, geographically distant from one another, make[s] this proposed class an implausible creature which could not possibly satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure" (id. at 28).*fn2
The only facts available to us are those detailed in the complaint. In support of the motions to dismiss we take all well-pleaded facts as true, but we will not strain to find inferences favorable to the plaintiffs which are not apparent on the face of this civil rights complaint. Metcalf v. Ogilvie, 436 F.2d 361, 363 (7th Cir. 1970). Especially in the school desegregation area, conclusory pleading such as evidenced in this complaint is woefully inadequate. Direct linkage between the facts pleaded and the violation asserted must exist on the face of the complaint. Put another way, a "plaintiff is required to set forth specific illegal misconduct and resultant harm in a way which will permit an informed ruling whether the wrong complained of is of federal cognizance." Duncan v. Nelson, 466 F.2d 939, 943 (7th Cir. 1972), certiorari denied, 409 U.S. 894, 34 L. Ed. 2d 152, 93 S. Ct. 116, 93 S. Ct. 175.
According to the complaint, the Illinois State Board of Education and its predecessor, the Illinois Superintendent of Public Instruction, were required to prevent the segregation of school facilities under 1975 Ill. Rev. Stats. ch. 122, § 10-22.5.*fn3 Further, pursuant to the Armstrong Act, the State Board and its predecessor were affirmatively required to change attendance units with a view to the prevention of future and elimination of preexisting segregation. 1975 Ill. Rev. Stats. ch. 122, § 10-21.3.*fn4 In 1971, under rules which had been adopted by the State Superintendent of Public Instruction,*fn5 he found that the named defendant school districts "were in violation of the laws of the State of Illinois because of segregation and discrimination within said school districts" (Complaint P 22). The complaint asserts that plaintiffs have been denied equal educational opportunities because of defendants' failure and refusal to correct the segregation and discrimination in the schools in the named Rockford, Peoria and Joliet school districts.
Read liberally,*fn6 the complaint alleges a federal statutory school segregation claim under Title VI of the Civil Rights Act of 1964, a constitutional claim under the Thirteenth and Fourteenth Amendments and a state statutory claim under the Armstrong Act. Since federal jurisdiction over the Armstrong Act claim is strictly pendent to the alleged federal claims, we must initially determine whether a federal cause of action exists. To avoid unnecessary constitutional adjudication, we will construe the Title VI claim first.*fn7 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 80 L. Ed. 688, 56 S. Ct. 466 (Brandeis, J., concurring).
The complaint alleges that the defendant Rockford, Peoria and Joliet school districts were receiving federal funds during all pertinent times. Section 601 of Title VI of the Civil Rights Act of 1964 provides:
"No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d.
Section 601 has been used in the equal education opportunity area. Lau v. Nichols, 414 U.S. 563, 39 L. Ed. 2d 1, 94 S. Ct. 786; Bossier Parish School Board v. Lemon, 370 F.2d 847, 851-852 (5th Cir. 1967). But even if arguendo Section 601 can be read to imply a private cause of action against administrative actions or inactions having the effect of discriminating "'in the availability or use of any academic * * * or other facilities of the grantee or other recipient'"*fn8 even though no purposeful design is present (cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396, 45 LW 4506, 4509 n. 15), the discrimination must be the actual causative resultant of the actions under scrutiny. Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 434, 49 L. Ed. 2d 599, 96 S. Ct. 2697. When, under state imposed standards, federal and state money is spent on equality of treatment, by providing students with the same facilities, textbooks, teachers and curriculum, the ancillary fact of racial imbalance does not state a claim under Section 601. Cf. Lau v. Nichols, 414 U.S. at 566. And without a recitation of how specific prior actions have caused specified discriminatory effects, the mere fact that defendant school districts were cited as being segregated by the State Superintendent of Public Instruction in 1971 (Complaint P 22) does not require affirmative action under Section 601.*fn9 See Soria v. Oxnard School District Board of Trustees, 386 F. Supp. 539 (C.D. Calif. 1974); cf. Duncan v. Nelson, 466 F.2d 939, 943 (7th Cir. 1972), certiorari denied, 409 U.S. 894, 34 L. Ed. 2d 152, 93 S. Ct. 116, 93 S. Ct. 175.
Since Section 601 does not provide a cause of action, we must reach the constitutional question. In Washington v. Davis, 426 U.S. 229, 240, 48 L. Ed. 2d 597, 96 S. Ct. 2040, the Supreme Court has recently underscored the absolute necessity of segregative intent to a successful constitutional challenge to school segregation:
"The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominately black and predominately white schools in a community is not alone violative of the Equal Protection Clause. The essential element of de jure segregation is 'a current condition of segregation resulting from intentional state action.' Keyes v. School Dist. No. 1, 413 U.S. 189, 205 [37 L. Ed. 2d 548, 93 S. Ct. 2686] (1973). 'The differentiating factor between de jure segregation and so-called de facto segregation * * * is purpose or intent to segregate.' Id., at 208. See also id., at 199, 211, 213."
As we said in Lawlor v. Board of Educ. of Chicago, 458 F.2d 660, 662 (7th Cir. 1972), certiorari denied, 413 U.S. 921, 93 S. Ct. 3045, 37 L. Ed. 2d 1043, the "mere fact of imbalance of races is not alone a deprivation of equality of educational opportunity in the absence of purposeful invidious discrimination." Manifestly, one must of "necessity * * * establis[h] that school authorities have in some manner caused unconstitutional segregation * * *." Pasadena City Board of Education, supra, 427 U.S. at 434.
Here the complaint does not allege segregative intent. Plaintiffs seek to avoid the dictate of Washington v. Davis by the novel argument that by virtue of the affirmative duty to eliminate de facto segregation imposed as a matter of state law by the Armstrong Act, segregative intent must be conclusively presumed to exist since de facto segregation concededly continues in the named defendant school districts. This innovative theory cannot withstand analysis. "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450, 45 LW 4073, 4077. See generally Note, Reading the Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction, 86 Yale L.J. 317 (1976). In this inquiry we must steadfastly eschew any "readiness to impute to school officials a segregative intent far more pervasive than the evidence justifies[s]." Austin Independent School District v. United States, 429 U.S. 990, 991, 97 S. Ct. 517, 50 L. Ed. 2d 603, 45 LW 3413 (Powell, J., concurring). Even if we read the complaint as alleging that absolutely nothing had been done to discharge the Armstrong Act's affirmative duty to desegregate,*fn10 this is not the equivalent of segregative intent as a matter of law. Mere failure to implement without more is not enough. For under the Armstrong Act, which has been construed as applying to de facto segregation, the "school board [can] conclud[e], based on considerations of traffic hazards, walking distances, finances and classroom capacity, that existing attendance unit boundaries should not be revised." Tometz v. Board of Education, Waukegan City School District No. 61, 39 Ill. 2d 593, 602, 605, 237 N.E.2d 498 (1968).*fn11 Therefore since segregative intent is not pleaded and since the facts pleaded do not make out the required segregative intent as a matter of law, the complaint does not give rise to a constitutional claim. Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040.
Because no federal claim has been asserted, we, of course, have no power to retain jurisdiction over any putatively well-pleaded state action founded on the Armstrong Act. United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130. C. Wright, Federal Courts 74-75 (3d ed. 1976). Therefore the dismissal of the entire cause must be affirmed.
Judge Grady dismissed the cause below with prejudice. Although the plaintiffs never sought leave to file an amended complaint,*fn12 plaintiffs maintained at oral argument that they should have an opportunity to plead segregative intent. Rule 15(a) of the Federal Rules of Civil Procedure. Our review is to determine whether the district judge committed error. We agree that he correctly held the complaint insufficient. He did not abuse his discretion in denying leave to amend the complaint, because such leave was never sought.*fn13 Under these circumstances, we can find no basis for disturbing his judgment in any way. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227. No injustice will be done by giving the district court's judgment its due in accordance with the usual procedure. This is not a class action.*fn14 Our decision will not bar a later action by other parties if discriminatory purpose can be properly alleged and proved, and plaintiffs here will benefit by any declaratory or injunctive relief that may be granted in such an action.
The judgment of the district court is affirmed.
The judgment of the district court is affirmed.