Root and Branch: The Judicial Effort to Eliminate Segregation in Denver’s Schools HisT 4839 Department of History University of Colorado at DenverA teacher had been stabbed by a “razor-toting Negro student.” Or so the rumor would have students and parents of Denver, Colorado believe. The rumor had begun less than twenty four hours into the 1969 school year after integration and busing plans had been implemented by a federal court order. The teacher, in reality, had been cut on the wrist in breaking up a fight between a white and an Ali ican studen in Am jut the newly racially integrated schools in Northeast Denver had caused confusion for all involved. The court order had been implemented only four days prior to the new school year, and administrators scrambled to adhere to the order? The federal district court had the authority to issue such an order under the 1954 decision of Brown v. Board of Education, where in a unanimous decision, the Supreme Court struck down the ninety year old precedent of Plessy ¥. Ferguson of legally mandated racial segregation, and held that that state-ordered separate-but-equal statutes in schools were inherently unequal. While Brown een as a turn in Constitutional and American history, the decision itself was, not the pillar of equality that it is seen as today. It was brief and vague. While establishing that state- mandated or de jure segregation in schools was unconstitutional, the initial decision lacked a remedy. ‘The justices knew they were in a delicate situation, Their decision would be met with massive resistance in the South, The Justices had dismantled social order through judicial action. The Court, through their Brown decision, had upset a nation’s allegiance to federalism and without any means to enforce their decision. In 1955 the Court produced a remedy, keeping in mind the difficulties that they faced. Brown ITis most remembered for the frustratingly ambiguous phrase “all deliberate speed."* But the opinion was also carcful to stress the importance of locally implemented desegregation plans to be carried out in good faith by school authorities. * Carter, Charles and John Dunning. “Rumors Feed School Stfe, Tension.” Denver Post, December 15, 1969, 60. 2 Denver Post, December 15, 1969, 60. ® School Busing’ Realty Changes Few Minds, Jahn Dunning and Charles Carter, The Derwer Post, December 14, 2969, 33 * Brown v. Board of Education, 48 US 294 Supreme Court 1955Due to the fact that the Court understood that segregation had arisen from local conditions, they also understood that judicial remedies would have to be locally tailored to respond to specific local fact patterns. Chief Justice Earl Warren's opinion put the primary responsibilty of enacting desegregation on schoo] authorities, but noted that “all provisions of federal, state or local law...must yield to [the] principle” that was espoused in Brown. Lower courts had the task of evaluating whether “the action of school authorities constitutes good faith implementation of the governing, constitutional principles” which the opinion emphasized as important due to the lower courts “proximity to local conditions.” Despite the frustratingly broad decision in Brown IU which allowed for slow progress and evasion of the ruling, this breadth can simultaneously be looked at as one of its strengths. The Court sought to include federalism in their national ruling, so states could continue to exercise their Tenth ‘Amendment right to set their own independent standards and retain control over schools without, giving over this power to the federal government. The justices had understood that problems and solutions surrounding desegregation were extremely local. Such was the case in Denver, Colorado, a city that had never maintained a legally mandated dual school system.’ Eight families, consisting of whites, Chicanos, and African Americans, which reflected Denver's tri-cthnic population, filed a case against the Denver School District, in what would become a lengthy desegregation case, in the summer of 1969, fifteen years after Brown I. The case of Keyes v. Denver School District Number One, Denver, Colorado was given to District Judge William E. Doyle, a lower court judge. Doyle ‘was faced with the task of reading Denver's tri-ethnic population while weaving his way through de jure and de facto versions of segregation. After his initial injunction, further findings, trial on the merits, and finally his remedy, the case was appealed to the Tenth Circuit and then to the Supreme * Brown v. Board of Education, 49 US 284 -Supreme Court 1955 © O'Brien, Constitutional Law and Politics Vol 2,145 ” Keyes v. Schoo! Dist. Wo. 1, Denver, 413 US 189 ~ Supreme Court 1973. Supreme Court. hntpi//scholargoogle.com/scholar_case?case=18368648151482795252q-keyes+v.4denvarsschoaltdstet&hleensas_sd—400 68s.Court, which heard argument on October 12", 1972, and issued its opinion on June 21%, 1973. The seven-to-one decision, with Colorado n: ive Justice Byron White recusing himself, overtumed Judge Doyle’s remedy. The Supreme Court’s decision in Keyes set the standard for how “local” would be evaluated by judges under Brown, Where Doyle had issued a flexible and responsive remedy that ‘was neatly tailored to Denver’s schools, the Supreme Court issued a broad, national ruling concerning de facto segregation without state intent by holding that school districts would be the standard when evaluating local segregation. Through its decision, the Supreme Court emphasized that when judging segregation, the state of the entire district would be assessed. Doyle analyzed the istrict school by school, where as the Supreme Court evaluated the district in its entirety. Keyes has been looked at by historians due to its nature as an unusual integration case. The ‘Supreme Court had never before decided a case from a non-southern city, a city that had never maintained a statutory dual school system, or a city with a multiracial population. As evidenced by Tom Romero in his article “Our Selma Is Here: The Political and Legal Struggle for Educational Equality in Denver, Colorado, and Multiracial Conundrums in American Jurisprudence,” the Keyes decision both at the District and Supreme Court levels inadequately addressed educational concerns of Chicanos due to the precedent of biracial desegregation cases. Chicanos were in a racial and legal Jimbo, often eing referred to as other white or other black.* Chicanos lacked a fully developed legalese in which to argue their specific concerns. In his article, Romero looked beyond the Supreme Coutt’s decision in Keyes, arguing that it helped to develop the biracial discussion of school integration and furthered problems Chicanos faced in acquiring legal remedies” In her article “Courts and the Construction of Racial and Ethnic Identity: Public Law Litigation in the Denver Schools,” Rachel Moran examines how Keyes contributed to public law litigation. When legislatures ‘Our Selma Is Here: The Political and Legal Struggle for Educational Equality in Denver, Colorado, and Multiracial Conundrums in American jurisprudence," Seattle Journal for Sociol ustice, 3, no, 1 (2012): 73-142, btepffeigitalcommons law seattleu edu/s)}/vol3/ss1/32 (accessed October 12, 2013), 123, Romero, “Our Selma Is Here,” 99.stalled in implementing changes, the people tured to the courts. Moran focused on how the case interacted socially with Denver and the role of Judge Doyle and how he was viewed by the lawyers both lawyers and lay people.” Doyle, she argued, did take on a more active role, but the decisions produced a raised level of race consciousness in Denver.'' While both articles help to explain what Keyes produced, itis important in examine Keyes as a descendant of Brown in that it helps to show how different definitions and levels of legal reasoning and analysis are used and applied by different courts and judges even when they are using the same precedents. INJUNCTION ‘The case was brought in response to the rescission of three resolutions that would have stimulated integration. Wilfred Keyes along with seven other families filed suit against the Denver School District in the summer of 1969. The suit followed a May School Board election, in which two candidates who were in favor of Resolutions 1520, 1524, and 1531 lost to antibusing candidates. Resolutions 1520, 1524, and 153] were passed by the School Board to counter the segregation that had been occurring in the Park Hill area. The three resolutions contained mandatory busing as a ‘means to this end. The victory of the antibusing candidates was scen as 2 representing the will of the majority against mandatory busing.'? Once in office, the antibusing majority voted to rescind Resolutions 1520, 1524, and 1531 on June 9*, In response to this rescission, the case was filed in istrict court, where the plaintiffs, Keyes and the other families, sought an injunction against the rescission of the resolutions.'* * nachel Moran "Courts ad the Construction of Racial and Ethic Identity: Pub Law tigation in the Denver Schools," Buletin of te American Aeademy of ts ard Slences, 0, no. 6 (1937: 19.39, ht:/0- ‘worn stor org shine ucdenverecu/stabe/3824358 (accessed October 13, 201], 28-30, 32 = Moran, "Courts and the Construction ofa Rata and Ethnic identi,” 35, ¥ Keyes v. Schoo District Number One, Cenver, Colorado, 203 F.Supp. 279 Dis. Cour, D. Colorado 1969. nit Injunction, Section ‘olar google com/scholar_case?case=1836864815148279525&qrkeyesty.sdenversschcoledisticthlnerdas_sdt=400‘The difficulty the plaintiffs faced was proving de jure segregation on behalf of the School Board. The case landed before District Court Judge William E. Doyle. In his opinion granting the injunction, Doyle held that the actions taken by the Denver School Distriet since 1960 solidified and intensified segregation in certain schools and thus qualified as de jure segregation.'* The School Board argued that there was no “actionable segregation” and that the policies adopted by the District worked merely to maintain the neighborhood school system, which meant that boundaries would be drawn to allow students to attend the schools that they lived closest to. The School Board contended that any segregation that did exist was due to “natural migration” meaning naturally occurring housing patterns,'> The Denver School District, however, had extensive knowledge surrounding the segregation within its schools and had repeatedly acknowledged the need to both halt segregation and encourage integration. While Denver never maintained a de jure dual school system, the constitutional violation that Brown [recognized and Brown JI sought to remedy, plaintiffs claimed that the policies implemented by the School Board since 1960 had segregative intent and that the Board knew about the problem of segregation and educational inequalities but took little aetion to address these problems. Twice in the 1960s, the Board had created committees to study segregation and evaluate equality of educational opportunities in Denver public schools. These committees were critical of the ‘Board's decisions that they saw as intensifying segregation, and recommended policies that would counter segregation trends. Following the recommendations of the special committees, the Board adopted Policy 5100, which called for policy changes that would “result in a more diverse or heterogeneous racial and ethnic school population.”"S The Board also adopted the Noel Resolution. ‘The Noel Resolution acknowledged that neighborhood schools had led to the concentration of “minority and ethnic groups” and “called forthe establishment of an integrated school population so 2 tnt Injunction, * jal Injunction, Section I, The Isues, * inital injunction, ection I, The Evidence of the Case.as to achieve equality of educational opportunity.”"” Despite the fact that such policies were officially adopted by the School Board, the Board never took any action towards fulfilling them."* ‘The knowledge of the repercussions of the Schoo! Board’s policies was important for Judge Doyle. Because the Board had knowledge of segregation within schools, this knowledge helped to prove intent. Doyle understood the strategies of the School Board as evidence of fault because they showed both “clear patterns of segregation reinforced by official action” and “knowing and purposeful conduct.”'? Such action taken by the School Board amounted to legislative action and was deemed by Doyle to be de jure segregation, One component of the plaintiffs’ complaint was the opening of Barrett Elementary, which they argued opened as a segregated school and worked fo exacerbate segregation in other schools. The case focused primarily on northeast Denver or Park Hill, where the African American community was centered and had continued to grow outward toward and eventually past Colorado Boulevard. Doyle ruled that this population trend was “apparent” to the School Board even before this transition was complete ”° Barrett, a small school built near Colorado Boulevard in the late 1950s, was built by the School Board to serve the African American community that resided there. Due to its placement and timing, Barrett exposed the intent of the District to create a segregated African American school. Stedman Elementary School was located just a few blocks east of Colorado Boulevard and remained “almost entirely Anglo, while Barrett was predominantly African American”! Barrett, had it been built as a larger, more centrally located school, could have encouraged integration with the overcrowded and predominantly white Stedman. Before the construction of Barrett, students had attended Park Hill School which had been integrated. When Barrett opened as a segregated school, the boundaries in place worked to re-segregate Park Hill as a Initial Injunction, Section I, The Evidence ofthe Cese. ° initial injunction, Section Il, The Evidence ofthe Case * fail injunction, ection lV, Additional Findings. 2 ital injunction, Section il, The Evidence ofthe Case. * intial injunction, Section Il, The Evidence ofthe Casepredominantly white school by sending African American students that would have attended Park Hill to Barrett. Doyle stated “the action of the Board was taken with knowledge of the consequences, and these consequences were not merely possible, they were substantially certain." Based on the evaluation of the facts concerning Barrett and other schools, Doyle ruled that the Schoo! Board had mandated de jure segregati n Further evidence presented of de jure segregation included the Schoo! Board placing minority teachers in mi rity schools. The Board had a practice of not placing minority teachers in predominantly white schools for fear they would not be accepted, which reflected the unwillingness of the Board to encourage racial tolerance. Furthermore, minority teachers spread throughout the system was recommended by the Special Study Committee on Equality of Educational Opportunity in the Denver Public Schools but the Board never adopted the policy.” Doyle held that the racial and ethnic concentration of teachers and faculty in minority schools in effect “seals off” the permanent status of those schools as segregated. Certain boundary changes were adopted which exacerbated segregation but did not address overcrowding.”* The Board built new classrooms at African American Hallett, which intensified segregation as it allowed for more African Americans to attend school there, as opposed to integrating another school. This move also went against the School Board policy of considering ethnic and racial characteristics of a school population in determining boundaries and to take steps to achieve a more heterogeneous school populations.”* In 1964 the Board built swenty-eight mobile classroom units in the Park Hill area, when at the time there were only twenty nine in all of Denver.” This again exacerbated segregation as it allowed for greater ® Keyes w. Schoo! Dstriet Number One, Denver, Colorado, 303 F.Supp. 288 - Dist. Court, D. Colorado 1868. Supplemental Findings, Conclusions and Temporary Injunction. Findings of Fact, Barrett Elementary School Point 7. htpi/scholar google.com/schotar_case?case=83283863625981223948q-keyestv.tdenversschouledistrict&hieendias_sét=400 6835 vis=2 inital Injunction, Section IV. Additional Findings, Point 4 intial injunction, Section Iv, Adstional Findings, Point 4 * initial injunction, Section IV. Adeitional Findings, Point 6 * initia injunction, Section IV. Adeltiona Findings, Point 7 inital injunction, Section IV. Adetional Findings, Point 8numbers of students to attend segregated schools rather than encouraging integration. In total, the ‘School Board manipulated a variety of factors in order to preserve the whiteness of some schools and the minority make-up of others. When the Board finally did take action to work towards integration by passing Resolutions 1520, 1524, and 1531, Judge Doyle held that it acted so as to fulfill its constitutional duties and ensure the rights of its students, The three Resolutions were passed and created with the explicit intent to integrate, By rescinding those resolutions, the Board actively worked to deny students their Fourteenth Amendment rights, and such an action showed intent by the School Board to segregate. The act of the rescission of the integration plan, Doyle ruled, did not simply have a “chilling effect” on the rights of students, it had a “freezing effect.”"* Doyle was careful to evaluate Denver segregation in light of the 1964 Tenth Circuit case of Downs v. Board of Education, Downs originated in Kansas, a state that had explicitly mandated racial segregation and where Brown originated from. Downs, which Doyle summarized in his inital injunction, established principles concerning de facto and de jure segregation in light of Brown. In cases where a Schoo! Board took affirmative action to promote or maintain segregation, the actions hhad to not only result in intensified segregation but had to have been motivated by segregative intent and with the purpose to segregate.?” The Tenth Circuit saw de facto segregation as a result of population shifts rather than intentional state action. Because of this understanding, the Tenth Circuit ruled that de facto segregation did not constitute a constitutional violation because all state actors acted in good faith, meeting the requirements of Brown.” Itis exacily the rescission of the resolutions that Doyle emphasized as proof of intention to promote and maintain segregation because the only purpose behind the rescission was segregation. initial Injunction, Section Vt, Conclusion. ® initial Injunction, Section V. The Applicable Law. initial Injunction, Section V. The Applicable Law.This fact then met the test required by Downs. The maintenance of neighborhood schools does not, on its face, violate constitutional principles. ‘The other prominent Tenth Circuit case Doyle looked to for precedent was Oklahoma City Public Schools, etc. v. Dowell, decided in 1967. Dowell interpreted Brown “as requiring affirmative action to remedy segregation which had been purposefully caused by prior actions of the school board.”"! This meant that state bodies, such as the Board, had a duty to correct past actions that had been carried out with segregative intent. As interpreted by Doyle, the Denver School Board, in response to this affirmative action, passed the three resolutions, Doyle wrote, “In light of Brown and Dowel, the effort of the Board to renounce this constitutional duty by rescission must be rejected as, arbitrary state action.” In other words, the Board’s decision lacked a legitimate state interest, a necessary standard under Equal Protection Clause jurisprudence. Doyle’s reading of the Denver School Board's actions was locally tailored to those lower Tenth Cirevit opinions, Both of those Tenth Circuit cases were denied certiorari by the Supreme Court, meaning the high Court declined to hear argument and issue an overriding decision that would limit lower courts. While not explicitly endorsing the Tenth Circuit’s decision in regard to either case, at the time it ean be gleaned that the Court approved, of at least did not deny, that de facto segregation as a result of a neighborhood school system did not mandate a Constitutional violation, Judge Doyle kept his ratings responsive to local conditions. Doyle’s initial injunction was vacated and remanded by the Tenth Circuit, which held that it was not sufficiently specific, In his second injunctive opinion, Doyle more adequately specified the injunctive order, holding that without the preliminary injunction, the plaintiffS and the classes they represent would “suffer irreparable injury” without judicial intervention While the School Board was prevented from modifying the Resolutions as they existed before the June 9" rescission, Doyle stated that nothing Injunction, Section V.The Applicable Law. Injunction, Section V The Applicable Law. » supplemental Findings, Conclusions and Temparaty injunction. Preliminary Injunction, Poin 410 about the order prevented them from submitting any other integration plans. Doyle also articulated that for the resolutions as they applied to East High and Cole, he would not yet rule as he did not have sufficient evidence of their need.”* By considering how the resolutions would specifically affect each school, Doyle showed a specialized, local analysis of the facts while being mindful of federal precedent as well as implementing the rulings of the Tenth Circuit. ‘TRIAL ON THE MERITS Resolutions 1520, 1524, and 1531 only addressed de jure segregation in the Park Hill area of Northeast Denver. At the trial on the merits, where Doyle ruled on the issues of the case, the plaintiffs sought further relief. They named twenty-seven other schools that they asserted had been segregated by the School Board and tous deserving of judicial remedy. Doyle held that because the remaining schools lacked a “legislative action similar to the rescission of Resolutions 1520, 1524, and 1531,” he assessed them differently than his approach concerning the Park Hill Area schools. a In evaluating these “core city” schools, Doyle had to decide which schools met the standard of “segregated” and evaluate the manner in that they were segregated. Doyle did not have to utilize a similar standard when assessing the Park Hill area schools due to the fact that the plaintiffs had made a clear showing of de jure segregation. Doyle saw the core city schools as segregated through de facto segregation by way of the neighborhood school system and without state intent. This finding necessitated he develop a standard with which to evaluate how “segregated” the de facto segregated schools were in order to provide relief The plaintiffS argued thatthe total percentage of Chicano and African American students ought to be taken into account to establish segregation.” + supplemental Findings, Conclusions and Temporary Injunction. Preliminary injunction supplemental Findings, Conclusions and Temporary Injunction. Preliminary injunction. * Keyes v Schoo! Distt Number One, Denver, Colorado, 313 F. Supp. 61 - Dist, Court, D. Coloredo 1969. ral on the Merits, Section betp://scholar google. com/scholar_case?case=123$5890863957519127&q=keyesty.sderwersschoolcistick! 068as_y > Tran the Metts, Section I. as. st=20i Part of both Doyle’s decision of the case on its merits and the Supreme Court’s ruling in 1973 was the issue of Chicano students in Denver schools. The jurisprudence of desegregation cases had predominantly been biracial, and the presence of Chicanos both as the majority in minority schools and as a minority in white schools presented a new issue. Doyle rejected the placement of both Chicano and African American students in the same category for purposes of establishing segregation, calling such a classification an “oversimplification,”** The fact was that while both Chicanos and African Americans faced similar educational inequalities compared to white students, “the problems applicable to them are often different.”*” He neglected, however, to elaborate on what he understood as substantive differences between the two groups. Doyle declined to “lump together” the two minorities because they faced different dilemmas.” This was a taming point in Doyle’s treatment of the unfamiliar presence of a tri-ethnic complaint. The Chicano perspective had gone largely unnoticed in Doyle’s opinions up until this point, The mention of the word “Hispano,” which Doyle utilized to refer to Denver's Chicano population in his opinions was scarce. In his two earlier injunctive opinions, it was only used to mention the percentage of Chicano children in specific schools and the number of minority teachers at minority schools. The trial was the first opinion in which Doyle acknowledged that the problems and solutions concerning Chicano and African American students were different. This recognition ‘was in part the reasoning behind differentiating between African Americans and Chicanos. Doyle found that fifteen of the so called “core city schools” were segregated, meaning that each schoo! had a single-minority composition of seventy to seventy-five percent.*' Doyle also had to establish whether or not this segregation constituted de jure segregation and whether there was an appropriate judicially mandated remedy. ® Trial on the Merits, Section Teal on the Merits, Section t “Tria on the merits, Section t “Tal on the Merits, Section I In his later remedy, Dayle would include Eiri and Smedi,2 Doyle closely analyzed each school and the effects of actions taken by the School Board, According to precedent, de jure segregation was established by the schoo! administration taking action with the purpose of segregation, and action must have created or aggravated segregation. The factor of intent established by earlier Tenth Circuit cases wes an important factor in proving d segregation. Continuing off Tenth Circuit jurisprudence, Doyle wrote, “There must be a causal connection between the acts of the school administration complained of and the current condition of segregation.” For Doyle, the racial imbalances at Manual High School, Cole Junior High School, Morey Junior High School, Boulevard Elementary School, and Columbine Elementary School were unable to meet this test.“* To Doyle, these schools were the result of a neighborhood-based school system and the Schoo! Board had acted in good faith. This was de facto or “natural” segregation, if any at all. This was evidenced by the fact that their segregation happened slowly overtime, rather than in a very short span of time as a result of direct Board action, like in the case of Barrett.“ Furthermore, the actions of the Schoo! Board conceming changes directed towards these schools did not prove de jure segregation, and without this level of segregation, Doyle lacked the authority to order all-out desegregation. The court, he said, could not order desegregation simply to achieve a more desirable racial balance. Doyle reiterated that the Board did not “refuse to admit any student at any time because of racial or ethnic decree,” in accordance with Brown. *© ‘The Constitutional issue at stake was not whether there were inequalities among Denver's schools, but whether those inequalities had been mandated by the state based on ethnicity or race. Doyle did not see the Board as acting maliciously. But Doyle understood that the Board had maintained the neighborhood schoo] system and failed to take action that had integrating effects, thus © Teal on the Merits, Section 1, “Trial onthe Merits, Section i Points 1-5. Cole Junior High was Included tn Resolution 1524, The Resolution allowed for 8 reduced student population atthe school inorder to improve the educational opportunity programs for students as well as Greate a space for special education programs for low achieving students, * Trial on the Metit, Section! Point 3 © Tal on the Merits, Section “ Trialon the Merits, SectionB enabling segregation. “Under the present state of law, particularly the Tenth Circuit,” this fact did not “dictate the conclusion that this is de jure segregation.”"” Doyle had the responsibility to root out inequality imposed by the state that was based upon race or ethnicity, rather than all inequalities -wide school system.** present ina dist ‘The question of a violation or a remedy stil] remained. While the schools were segregated, through the fact-finding process Judge Doyle had not been able to deem them segregated by state intention or with the purpose of segregation. But Doyle found that the segregated schools, due to the inexperience of the teachers, teacher tumover, lower scholastic achievement, higher dropout rates, and condition of buildings (which did not as much effect education but reinforced that these schools were inferior), did not even meet a Plessy standard. He found that they were unequal in their ‘educational opportunity, and thus in violation of the Equal Protection Clause of the Fourteenth Amendment.” Despite Judge Doyle upholding the neighborhood school system and acknowledging the presence of segregated schools, this finding allowed the plaintiffs and the core city schools with seventy to seventy-five percent minority population relief. The Denver School Board did not take positive action to alleviate de facto segregation, nor was it required to. By failing to provide equal educational opportunities, however, the Board had violated constitutional rights, and the “enforced isolation imposed” by the neighborhood school system greaily contributed to the inferiority in some of schools.” ‘The Board was required to provide equal educational opportunities under the precedent set by Plessy as well as another pre-Brown case, Sweatt v. Painter. Because the core city schools were de facto segregated, they did not meet a Brown level of analysis, so Doyle considered them in light of Plessy, which demanded that though facilities were separate, they must be equal. Sweatt, which dealt © Trak on the Merits, Section * Trial on the Merits, Section I * Trial on the Merits, Section Il Points AE © Trial onthe Merits Section I14 with de jure segregation under the separate-but-equal doctrine, held that separate schools for minorities could not be equal to their white counterparts because they were inferior in terms of the “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, tradition, and prestige.”*' Such inequalities were cause for judicial action. ‘The relief in the trial offered broad means of solutions for problems. Explicit relief was the continued implementation of Resolutions 1520, 1524, and 1531. Doyle also expanded the enforcement of the Resolutions to include the East High School and Cole Junior High School provisions, which Doyle had left out of the Preliminary Injunction. Doyle included them after the trail because he found their administration to be preventative to segregation and overcrowding. idence in the opinion showed that the Resolutions were working.” The opinion also called for a program of improvement, which focused on renovating schools not in terms of their physical structure, but as educational institutions and improving the learning environment of schools and learning experiences of students. This was a reference to Brown, which emphasized that intangible factors affect equaled education It also emphasized the importance of competent teachers and thet increasing teacher turnover created confusion and reminded students that their school was less desirable, an intangible factor that prevented equal educational opportunities thet Doyle sought to eliminate. Doyle also focused on fostering pride and spirit among schools that lacked equal educational opportunities through leadership and dedicated personnel, so students could know they were part of « meaningful effort. O'Brien, Constitutional Law and Poltics Vo, 2, 1038. © Trial on the merits, Section i. Brown v. Board of Eoucotion, 349 US 294 - Supreme Court 1955, The Court, in ts Brown decision, reiterated the “intangible actors” at play in Swot v. Pointer, a5 well as the Idea that separate schools onthe bass of race, particularly for children In ‘elementary and high school, would produce “ Feling of inferirity..that may affect their hearts and minds unilkely to ever be undone"15 Doyle was careful to note that he did not offer a cure-all, nor did he have the expertise with which to carry out such programs, which he left to the Board. In terms of mandatory busing for students as a means to integration, Doyle held that neither the “plaintiffs nor the defendants nor any other interested parties are in favor of busing.” Busing was legally required only as it applied to Resolutions 1520, 1524, and 1531. Doyle discussed other remedies, including the Voluntary Transfer Policy and Voluntary Open Enrollment or VOE. VOE ‘was a policy that the School Board already had in place as a means to integration, though it had been largely unsuccessful as evidenced by the state of integration among Denver's public schools. Doyle deemed the VOE “neither ‘voluntary’ nor..."open.’” because it required that there be a space available for a student to enroll at any one school or that there was an exchange between schools.“The Voluntary Transfer Policy allowed minorities to transfer out of an inferior school, without requiring a student to transfer to an inferior school. Furthermore, under the Board’s own policy, they would have to provide the transportation for these students. Despite his misgivings about the VOE, Doyle did not strike it down as an aspect of possible relief for the final remedy. This was in part because the Board argued it would produce integration, and he saw no reason for limiting options available to either students or the Board. The Voluntary Transfer Policy, however, was clearly superior in Doyle's mind, because it “satisfies the Constitution in that it recognizes the right of every student and makes that right available to him without forcing it on him.”*” Doyle recognized that transportation options had to be available to students and parents to encourage integration, but understood that some individualls, regardless of race or ethnicity, would not be partial to sending their children to unfamiliar and potentially unreceptive environments. There had been newspaper reports following the implementation of the three Resolutions of parents of minorities that were scared to Trial on the Merit, Section I Trial on the Merits, Section IV, Diseussion of Remedies, Part C. "Trial on the Merits, Section IV, Discussion of Remedies, Part E "rial on the Merits, Section IV, Discussion ofthe Remedies, Part D.16 have their kids bused to white schools should they be met with violence. The Voluntary Transfer Policy acted as a middle ground to recognize and ensure rights while not mandating an unwanted transfer or limiting options for minority students like the VOE did, Both of these programs would be considered by Doyle in his final remedy, FINAL DECREE Jude Doyle's Final Decree closely followed the jurisprudence set forth in Brown. Doyle’s remedy, handed down two months after the trial, was narrowly tailored to fit the circumstances of Denver's local school district. It was guided by equitable principles, while remaining flexible. After the tial, the “crucial factual issue” remaining in fashioning a remedy for the de facto segregated Schools was whether compensatory education without desegregation was enough ofa remedy to satisfy the plaintiffs" Constitutional violation. While the neighborhood school system was sustained, Doyle held that the “fundamental and absolute requisite is that these [schools] shall be equal.” This ‘meant that schools had to offer equal educational opportunities. The Schoo! Board had to eliminate the inequalities among the inferior schools as well as the compiled numerical deta included in the appendixes that contained achievement data and teacher experience by school. Plans had to ensure ‘aualty and be workable. Both plaintiffs and the Board submitted plans. Doyle found thatthe only program that could deliver true educational equality, meaning the elimination of inferiority, would entail desegregation and integration paired with a massive program of compensatory education in an egrated environment." Doyle ruled that after a finding of existing inequality, the remedy provided was constitutionally required to eliminate inequality “root and branch.” This phrase, originally appearing in Green County School Board, a Supreme Court case that held that school boards had “the ss er, Chats andohn Duncing, “Schoo! aun’ Realty Changes Few Minds.” Denver Past cember 1965, 938 1 Keyes School District Number One, Demer, Colorado, 313. Supp, 80 -Dix. Cour D. Colrade 1570 racioe oe Piulscholar google com/scholar_ceee?case~1650648430887693422 4 q=keyesw.sdenversechooliastethlcen Bos stad D68as_ vis, ‘Trial on the Merits, Appendix and it, Final Decree, Section i,7 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. By using this phrase, Doyle showed his dedication to constitutional remedies in accordance to Brown's local orientation, Doyle was committed to “rooting out” discrimination and inequality, and he showed this ‘commitment in his Final Decree by ordering integration. He required that half of all the court designated schools be desegregated by the fall of 1971, and that full integration be complete by the fall of 1972. “Full integration” was defined as each of the court selected schools have a white population beyond fifty percent. The VOE was to be used as an interim measure only from May until the fall of 1971. All final details were subject to review by the court. Doyle followed Brown IT by taking into account “publie interest.” Doyle highlighted the importance of the community and community support of plans. Compensatory education programs carried out in an integrated environment were designed to promote mutual respect and understanding among the community, including teachers, administrators, students, and parents. The educational complexes the Board had already begun planning for were to be oriented towards the needs of the ‘community in which they were located and the cluster of schools they served. * Doyle believed the ‘community support was essential to an effective integration plan. Tn order to gain this support, Doyle called for a community education campaign to be implemented over the next two years in preparation for completed integration. Stressing the “benefits and values” of desegregation and integration, both in and out of schools, was an important first step in building community support.” Community was important for Doyle because he understood that desegregation alone was not enough to achieve equal educational opportunities. This was 2 telling recognition in light of other desegregation cases, in that it showed that he understood equal education as something more © reenv. Cun Schoo Board, 291 US 420 Supreme Cur 1968, "nal Decree Seton V, Provion af the Pn Part * Final Dere, Seton inal Decree, Section IV, Firings and Guidelines, Pint 3. & final Dectee, Section V, Provisions of the Plan, Part, © ginal Decree, Section V, Provisions ofthe Plan, Part.18 substantial than merely the mixing of the races, even in light of Denver never having maintained a dual school system. Testimony by Dr. Neil Sullivan, who instituted the Berkeley desegregation plan, ‘gave evidence to the fact that “compensatory education must be correlated with desegregation if itis likely to achieve positive results,” because compensatory education alone did not improve educational opportunity among segregated schools." Doyle saw that it was the localness that was stressed in Brown that would be the strength of the plan. Compensatory education along with desegregation and imegration backed by community support would not only meet constitutional standards for providing a remedy, but would be effective. While Doyle again declined to aggregate the minorities for schools to meet a segregated standard, included in his compensatory education were African and Chicano cultural and history classes as well as Spanish-language training. Doyle left the precise means to be carried out to achieve integration up to the expertise of the plaintifis and the School District because he lacked the sufficient knowledge, and he gave the schools two years in which to complete total desegregation. 7° ‘The plan followed Brown I! by emphasizing the desire, rather than the constitutional mandate, for racially balanced schools. Doyle argued that in Denver, “[t}rue integration is not likely to occur...if Negroes and Hispanos are separated” from waites or from one another.” This was an instance that was true and specific for Denver. Because of Doyle's commitment to tailoring remedies to the local conditions while still meeting and emphasizing constitutional remedies and potential violations, Doyle’s Final Decree aligned closely with Brown. TENTH CIRCUIT The Tenth Circuit, on appeal, analyzed the facts of the case and failed to see a constitutional violation. The Tenth Circuit upheld Doyle's decision concerning Park Hill and the finding of de jure ‘Final Decree, Section i, The Testimony. © Final Decree, Section V, Provisions of the Plan, Part G Final Decree, Section V, Provisions of the Plan, Part A. Final Dectes, Section Vi, Concluding Remarks,19 segregation. Without this the de jure finding in the rest of the school district, however, they uprooted the relief he had given to the seventeen other de facto segregated schools that lacked equal educational opportunity, The Tenth Circuit’s analysis failed to even find a Plessy violation, despite the evidence presented. The Tenth Circuit upheld a closer reading of its earlier analysis in Downs and Dowell and held that de facto segregation, when cattied out without state action, was constitutionally permissible.” Any educational opportunity inequalities that were a result of practices other than state action could not be remedied by federal courts. The Tenth Circuit set aside the majority of Doyle's remedy because it did not view the inequalities among the schools to show a constitutional violation. Despite the number of inequalities that the plaintiffs had presented in trial and Doyle himself had articulated, the Tenth Circuit held that Doyle granting relief to those de facto segregated schools violated its precedent that upheld the neighborhood school system. Doyle had held that the core area schools were constitutionally maintained, but by granting relief based on educational inequalities to the de facto segregated schools, the Tenth Circuit held that his decision was contradictory to the idea that such neighborhood schools were constitutional.” ‘The Tenth Circuit opinion reflected a view that federal courts should not become involved in local school cases that lacked state action, The Tenth Circuit ignored the fact that this case was parallel to all schools that maintained a dual school system before Brown.” It did not see a violation of the Equal Protections Clause in light of all of the inequalities that children in segregated schools faced. Doyle in his opinions was cognizant of the Tenth Circuit's precedent concerning neighborhood schools. He referred to it a number of times and even emphasized that his decisions were limited specifically by the Tenth Circuit’s dedication to this principle.’* While Doyle was 2 Keyes v. Denver School District No. 1, Denver, Colorado, 445 F. 24 990 ~ Court of Appeals, 10" Circuit 1971. http scholar gooele-com/scholer_case?cese=99913620713105981S82q-keyessv-sderversschoolraistrcthl=enBias_s 6895.9 ® Court of Appeals, 10" Ciecuit ™ Tfialon the Merits, Section Il * trial the Merls, Section I20 dedicated to resolving Denver's educational inequalities, the Tenth Circuit failed to perceive a violation, Both the School Board and the parents appealed the decision to the Supreme Court. ‘THE SUPREME COURT ‘The Supreme Court in its decision made two important rulings. First, it held that Judge Doyle had erred in not placing minorities that faced inequities compared to whites in the same category.”* ‘The decision held that Chicanos and African Americans should be viewed in tandem. Second, both Judge Doyle and the Tenth Circuit did not apply the correct legal standard when evaluating whether or not the School Board intentionally segregated the core city schools.” ‘While not ruling on whether or not Doyle’s seventy to seventy-five percent standard conceming minorities was correct in determining “segregated” schools, the Supreme Court did hold that he had erred by not placing Chicanos and African Americans in the same category. The Court saw minorities differently than Doyle. The Supreme Court held that because both minority groups, though different in origin, faced educational inequalities and discrimination as compared to white students, their combined totals should determine “segregated” schools.”* Ina decision that surprised both sides, the Supreme Court issued an opinion even broader than the District Court's. In terms of the correct legal standard, the Court ruled that in eases, such as Keyes, the finding of de jure segregation in a substantial portion of the schoo! district, such as in the Park Hill schools, proved that there was a dual school system.”” The School Board then had the burden of proof in proving that its policies were either unmotivated by segregative intent or that the district was divided into individual and unrelated units, The Board then had to prove that the unit that was the victim of segregative intent was distinct from the others and that the segregative policies * supreme Court Decsion, Summary. ” Supreme Court Decision, Summary. ™ supreme Court Decision, Section i Supreme Court Decsion, Section I2 concerning that school ot area did not have reciprocal effects in other schools. Ifa School Board’s policies concentrated minorities in one school, the reciprocal effect is that another school’s white population is sustained. When these policies were paired with a neighborhood school system, the ‘Supreme Court argued, they locked in de facto segregation. © ‘The Supreme Court did not understand why Judge Doyle had not included the fact of proven de jure segregation in the Park Hill area schools when analyzing the actions of the Board as they concerned the core city schools. To the Supreme Court, that proven segregative intent had great bearing on the evaluation of de jure segregation or segregative intent on behalf of the Board in other parts of the district, School Board actions had effects beyond the schools that they were directed to. ‘The initial three Resolutions themselves affected twenty nine schools.” Brennan insinuated that Denver was not a school system with distinct, identifiable and unrelated units, and in fact schools had a high degree of interrelationship. The Supreme Court intimated that Doyle, on remand, should decide that the system employed was a dual system." Where the Supreme Court and the District Court differed, and where their differences had substantive effects, was in their definition of local and how this definition demanded or did not demand desegregation. Doyle examined schools in the core city ad hoe. For the Park Hill area and concerning Resolutions 1520, 1524, and 1531, Doyle looked at cach school individually, and the affects the Resolutions would have. For the remaining schools the plaintiffs alleged to be segregated, he created a standard for what was “segregated,” as well as evaluated the history of the schools and the actions of the School Board taken towards those schools. The fact that the School Board employed de jure, purposeful segregation in a significant portion of the school district did not play a part in determining de jure segregation in other parts of the district. To Doyle, the causes for Supreme Court Decision, Section * supreme Court Decision, Section 1 Supreme Court Decision, Section i. ° Supreme Court Decision, Section Trial on the Merits, Section I, Paints 1-5.2 segregation in the core city schools was “simple....de facto segregation,” like that existed in the Downs case. The Park Hill segregation differed from the segregation in the rest of the district because ‘the Board had carried out a “segregation policy.”** The segregation in Park Hill had developed due to the Board’s “prior affirmative acts.” By looking at and evaluating each school, Doyle could not have ‘come to the same conclusion as the Supreme Court did, To the Supreme Court, Doyle's definition of local did not provide adequate remedy to the problem presented. The Supreme Court ruled that by ignoring the purposeful segregation in Park Hill, Doyle had erred. Because de jure segregation in a portion of the district had been proven, that fact in and of itself placed the burden on the School District to prove that they had not purposefully segregated the entirety of the district, rather than on the plaintiffs to prove segregation. The Supreme ‘Court defined “local” not as school by schoo! but by school district. This same definition of local was used as reasoning in the 1974 decision of Milliken v. Bradley, which struck down inter-district busing as a means to remedy single-district de jure segregation.” In Bradley, the Court found that one district did not affect the other's racial composition, and thus, other districts could not be ordered to participate in a mandatory inter-district busing scheme absent a showing of de jure segregation. In Keyes, the Court dealt with the de jure segregation of a portion of a single district. Because de jure segregation had been proven in a part of the district, the impetus was thus on the School Board to show that it had not purposefully segregated the entire district. This was due to the fact that the segregation of minorities in schools affects the racial composition of other schools. The Court saw this as particularly true for Denver, due to the high interrelationship among the schools, as noted by Brennan. The Court argued that holding the plaintiffs responsible for proving de jure segregation school by school was restrictive and without precedent.” After plaintiff's had shown that “a dua system was compelled or authorized by statute...the State automatically assumes affirmative duty to Initia Injunction, The Applicable Law V. o’Brien, Consttutone! Law and Polties Vat 2, 1477. ” Supreme Court Decision, Section I23 effectuate a transient to a racially non-discriminatory school system. Brennan noted that the de jure segregation in the Park Hill area was not “an insubstantial or trivial” portion of the school district, and that in 1969 the Park Hill area schools contained 37.69 percent of Denver's total African American population.” The Court ruled that Doyle and the Tenth Circuit had noi seen segregative intent in other areas ofthe school district in part because of the Board's argument about the neighborhood school system. While the decision did not strike down neighborhood schools, it held that that such a policy that is said to be maintained as racially neutral is not dispositive when it has been proven that the School Board has acted with intent to segregate in a substantial portion of the district.”® A problem with Doyle's decision, the Court felt, was that the neighborhood school system paired with the proven racial segregation of the Park Hill area schools “may fail to counteract the continuing effects of past school segregation.””'The Supreme Court, however, did not discuss the potential of Doyle’s remedy. Doyle’s remedy addressed not only desegregation and integration, but equality of educational opportunity. The Supreme Court’s opinion focused primarily on the legal principles surrounding desegregation and evidence, rather than Doyle’s working remedy. Doyle also saw compensatory education as an essential ingredient to achieving educational equality. Doyle's de jon was flexible in that it included aspects from both the School Board's. Doyle never limited the Schoo! Board’s options, and explicitly stated that the Board could submit further or different plans at any time. He did not order the exact means to carry out his orders, merely that integration had to occur. But he was still specific in mandating requirements, such as the dates for completed integration and the ten essential elements that were to be included in the compensatory education programs. {Supreme Court Decision, Section Supreme Court Decision, Section I * supreme Court Decision, Section It * supreme Court Decision, Section Il24 District Court Judge William Doyle was given the task of evaluating the decisions and policies of a School Board that had never maintained a statutory dual school system and yet had direct knowledge about their problem with segregation. In line with Brown [and JI, he was able to ‘work within the rules of law that directed and limited his decisions. Hiis decisions were flexible, reconciled public and private needs, evaluated state action in reference to good faith, considered public interest, and were responsive to individual schools. Where he was judicially restrained in ordering all out desegregation, he nonetheless was swayed by the evidence of inequality in Denver's schools to see a Constitutional violation and provide a remedy that would work with the community to combat the unequal educational opportunities that schoolchildren faced. The Supreme Court vacated Doyle’s comprehensive and malleable remedy and instead issued a broad ruling in which it set national rules by defining local at the level of the school district. While decisions at the District and Supreme Court varied, both sought to implement the principle of equality and ensure equal educational opportunity that were at the heart of the decision in Brown.