Keyes v. School District No. 1, Denver, Colorado

RESPONDENT:School District No. 1, Denver, Colorado
LOCATION:Board of Education, School District No. 1

DOCKET NO.: 71-507
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 413 US 189 (1973)
ARGUED: Oct 12, 1972
DECIDED: Jun 21, 1973

Gordon G. Greiner – Argued the cause for the petitioners
James M. Nabritt III – Argued the cause for the petitioners
William K. Ris – Argued the cause for the respondents

Facts of the case

Petitioners proved that for nearly ten years since 1960 the Denver, Colorado school system implemented an unconstitutional policy of racial discrimination by operating a segregated school system. The defense argued, and the District Court held, that even though one part of the Denver system was guilty of segregation, it did not follow that the entire system was segregated as well.


Did the segregation in Denver involve all of the city’s schools and violate the equal protection clause of the Fourteenth Amendment?

Warren E. Burger:

71-507, Keyes against the School District of Denver.

Mr. Nabrit, you may proceed whenever you’re ready.

James M. Nabritt III:

Mr. Chief Justice, may it please the Court.

The Keyes case is here on writ of certiorari to review a judgment of the Tenth Circuit which in part affirmed and part reversed an order requiring limited desegregation measures in the public schools of Denver, Colorado.

Petitioner’s submission is that — is that the Denver system has violated the constitutional rights of Black and Hispano children to equal protection of the laws and that the courts below should have required a more comprehensive plan to desegregate the schools and otherwise eliminate discrimination.

Although the case comes from a State which had no statutory dual system, we see the case not as involving so-called “de facto segregation issues,” but rather as one with segregation practices of the kind the Court has been dealing with in the cases since Brown against the Board of Education.

And both courts below agreed with us but the Denver School’s Board engaged in deliberate segregation practices in shams and subterfuges to use the words of the Tenth Circuit to segregate.

But the courts below failed, we think, to accord the full remedy to which the petitioners are entitled.

Potter Stewart:

Well the — that the — the courts below — both of them, as I understand it, thought that so far as the core area of Denver went there was a de facto and not a de jury segregation.

James M. Nabritt III:

That — that is —

Potter Stewart:

Am I mistaken about that?

James M. Nabritt III:

No, that is correct.

My task in the argument is to discuss the issues in part 1 of our brief, dealing with racial segregation, the issues you referred, Mr. Justice Stewart.

And Mr. Gordon Greiner will speak next, to discuss whether the operation of inferior schools for Black and Hispano children also violates the Equal Protection Clause that requires relief.

Potter Stewart:

Assuming no de jure segregation, is that correct, that — that branch of the argument?

James M. Nabritt III:

We think that either ground, segregation or inequality, is sufficient to justify in order to desegregate the schools and argue also that both grounds together justify such a complete remedy.

After I briefly talk about the facts about the extensive nature of pupil and faculty segregation of the Denver schools, I shall argue with my first argument that if we draw only on the findings and conclusions of the district judge, which were affirmed on appeal, the findings, if you please, of de — of de jure segregation, the term the courts below used, that Denver has a pattern, practice in policy of racial segregation of the schools, which affected a large and significant part of the school system, not just a few schools, not just an isolated or de minimis discrimination but a general pattern.

I will argue that because of violations found below were system-wide, the remedy should have been aimed at all of the segregated schools.

Warren E. Burger:

Mr. Nabrit, before you proceed further, I overlooked announcing that Mr. Justice Thurgood Marshall is unavoidably absent this morning, attending a family funeral and he reserves the right to participate in the case on the basis of all the records and arguments that are recorded.

James M. Nabritt III:

My second argument will be that the facts found below require a conclusion that illegal segregation was considerably more widespread in the — in the system than the courts below have.

And that portion of the argument, I will concentrate on the Manual School as a case study to discuss the questions about the burden of proof of prima — what constitutes a prima facie discrimination and the like, and also, because of the — the real essential importance of Manual High School as the key stone of the segregated system, sitting atop a feeder pattern involving all the core elementary schools, 11 elementary schools with 3800 black pupils in 1968, feeding into the segregated high school.

William O. Douglas:

Does the record in this case show whether the composition of the School Board?

Was it biracial or —

James M. Nabritt III:

The School Board, during the relevant years, had one black member, Mrs. Noel.

She was the member who initiated the — the three —

William O. Douglas:

What was the —

James M. Nabritt III:

— desegregation resolutions in 1968.

William O. Douglas:

What was the size of the School Board?

How many members?

James M. Nabritt III:

The School Board was composed of seven elected members.

William O. Douglas:

How many?

James M. Nabritt III:

Seven elected members.

Potter Stewart:

Well then there was an election, which is material to this case, isn’t it?

James M. Nabritt III:

Oh, Mrs. Noel was not —

Potter Stewart:

No, but there was.

That — that’s what caused the precision of the — of a plan wasn’t it?

James M. Nabritt III:


Potter Stewart:

An election of the school.

James M. Nabritt III:

Spring of 1962.

When — when the case the — the Board members run city-wide, they don’t have districts there.

They are elected largely in the — in the school district.

Now, when the case began, the separation of blacks and whites in the system really was very intense.

Although only 14% of the 96,000 pupils were black, the vast majority were concentrated at a few schools.

Mr. Greiner is pointing in a 1968 elementary schools zone map in which we have shaded in dark blue, the zones of 10 elementary schools were from zero to 9% white populations.

Warren E. Burger:

Mr. Nabrit, kindly give me again the figure on the overall balance picture, the overall composition of the entire area as to Mexican residents.

James M. Nabritt III:

Fourteen percent Negro, 20% Hispano and 65% Anglo.

At the bottom of page 7 in our brief, you will see the details that — that — the details, statistics, Mr. Chief Justice.

Now, in these 10 schools shaded in blue, we find two-thirds of the black elementary pupils, more than 5500 of them, going to school with only 150 white pupils, less than one half of 1%.

Another 15% of the black are pupils who attend the other seven schools, outlined in green on the map, which are from 10% to 19% Anglo and most of those of schools toward the West are majority Hispano, all of these.

So, the forum segregation text is either all blacks or either black separated from whites by being all black schools or black separated from whites by being in schools with Hispanos.

Now that the — and the secondary schools had — had the outset of the lawsuit, a similar racial concentration, four-fifths of the blacks and three junior high schools with 4% of the Anglos, 91% of the blacks at — at two high schools Manual in east and the other 200 black high school pupils spread out in seven schools with 1300 whites.

As the faculty concentration and segregation, Judge Doyle found that this was part of — of the pattern.

He found that the tendency to concentrate minority teachers in monitory schools helped in his words, helped seal off these schools as permanent segregated schools.

He found that the reason for the concentration of blacks and Hispanos in minority schools was, and I quote “because of concern over a possible lack of acceptance by the white community, because of a fear of lack of support by some faculties and principals.”

So, for as many 10 years after Brown, all of the black and Hispano teachers in the system were assigned only to the schools where black pupils were concentrated.

And the figures on the faculty concentration patterns are set out in detail at pages 12 and 13 of our brief.

Note particularly, the — the overall small proportion of black and Hispano teachers, the black teachers were only 7% and Hispanos only 2% in 1968 and of course, in the early years, there were many — fewer such teachers.

So, when — when you see a school with 50% black faculty and assist them with only 7% black teachers, you can see what’s going on.

And I might say at this point that it seems to me that the Tenth Circuit’s reversal of Judge Doyle’s faculty desegregation injunction most clearly departs from this Court’s holdings, in Swann and the other cases.

The — the Tenth Circuit held that this admitted pattern of racial faculty assignments was justifiable because when they began back in the superintendent — former Superintendent (Inaudible) has said it that they wanted role models for black pupils in the black schools.

James M. Nabritt III:

That of course have nothing to do with it, but they excluded with Judge Doyle’s finding that they were excluding black faculty from the white schools.

Now, to begin my first argument, as I’ve said for the purposes of the first argument, we accept as correct the rulings of both courts below on the facts and the law about school segregation in Denver.

The courts below found segregation illegal only when the plaintiffs were able to prove that the school board’s explanation and justifications for segregatory acts, where I quote “a sham and a subterfuge consuming odious intent.”

This was the highest standard, the difficult burden that the — that the Tenth Circuit said — the plaintiff said to me.

And even with this excessively strict burden, plaintiffs were able to satisfy both courts below that the Denver system deliberately segregated eight schools attended by 37% of all the black pupils in the school system.

Our brief at pages 17 and 18 breaks down those figures in detail.

It identifies the schools and the percentages.

Now, the eight schools found deliberately segregated below in row a fourth of the black elementary children, 68% of the black junior high school children and 45% of the black senior high school children.

And our argument is that properly analyzed, the holdings below showed that Denver did have a pattern of practice of systematic discrimination but justified relief of all the segregated school.

Now, Judge Doyle found in general that the Denver School Board had a 10-year segregation policy, and he said the several different places in his opinion in several different ways.

But this is not just a question of numbers or the percentage of — of black pupils in the system affected by this file.

It is not just a question of how many schools that’s involved.

It’s a question of policy and that the findings of deliberate implication include policy decisions about all kinds of questions.

They were such things as the location in those schools, the place besides of schools, location conditions, the fixing of attendants boundary lines, years of optional zones, years of mobile classrooms, the faculty segregation policy, which was obviously had systemwide applications, and the recession of the three integration resolutions in the spring of 1969.

The only — now, let me give two examples of how Judge Doyle’s findings about Northeast Denver really implicate more than just the schools in the northeast of town.

Potter Stewart:

Implicate more than what, Mr. Narbit?

James M. Nabritt III:

More than just the local schools involved in the northeast part of town.

One of the findings by Judge Doyle was that the Board placed 28 mobile classrooms, up in the northeast part of Denver as Mr. Greiner’s pointing at.

And that — and Judge Doyle found in the quotation set out in our brief on page 25, that these mobile — the placement of these mobile classrooms was used to keep blacks confined in the black schools and out of the white schools.

Warren E. Burger:

Could you have identified for me what is referred to as the core city on that map, right in the left part of the blue area?

James M. Nabritt III:

The Manual High School is in the center there in a so-called 5.0 you referred to an opinion is just the size of Manual.

William J. Brennan, Jr.:

And where is the Park Hill area?

James M. Nabritt III:

The Barret Schools, Stedman School, Hallet School, the schools that the — so frequently mentioned in the opinion of these three that it was held that the policy was to segregate to prevent Park Hill and Philips, to keep those schools majority white, while these schools turn black.

William O. Douglas:

What’s the significance of the difference between blue and green shaded areas?

James M. Nabritt III:

The — under 10% Anglo and 10% to 20% —

William O. Douglas:

I see.

James M. Nabritt III:


Now all these schools are — now, at the same time these mobile units were placed in — in these Park Hill area schools, the Northeast Denver schools.

In the Southwest part of the City, a new — a new neighborhood was annexed into the school system which had 700 — which later became a trailer area, which had 700 children in those schools down there.

And so, instead of building mobile units at the — at the two nearby schools, (Inaudible) the Board instituted a policy of busing these Anglo children 10 miles across to the Southwest part of the city, the University Park, Asburian Court.

James M. Nabritt III:

And another example is the Montbello area, a newly developed area out there on the airport in the north — west part, and that area had no junior high school.

Those — those pupils were bussed past the — the black schools Smiley and Cory all the way to the east part of town over at Lake Junior High School.


James M. Nabritt III:

West to Lake Junior High School.

Now there — the — and I didn’t — I didn’t really finish the Trailer example.

When — when Trailer School was opened and freeing 700 spaces in the southeast area, even though the Board said it had a policy of using transportation to promote immigration, it didn’t use those spaces to relieve the overcrowding.

They removed the mobile units.

That’s what part of the recession controversy was about, simply removing mobile units to reassign — to reassigning children in overcrowded black schools to another neighborhood.

Warren E. Burger:

How many students in the entire area are in the so-called mobile or prodigal schools temporary —

James M. Nabritt III:

The —

Warren E. Burger:

— if you know of them.

James M. Nabritt III:

The finding was that there were 28 mobile units in — all in Northeast Denver at an average of 30 pupils a classroom, I suppose (Voice Overlap) —

Warren E. Burger:

I suspect that it would fluctuate.

That would fluctuate quite rapidly, wouldn’t it?

James M. Nabritt III:

Yes, yes, the neighborhood of 800 or perhaps more.

Now, we think that proving a policy and pattern of illegal segregation and it’s obviously not practical in a — in a brief oral argument to really get into all the evidence of a trial that took more than 20 days, but the — but that the findings do properly show such policy.

In other race discrimination fields, most notably in cases involving exclusion of blacks from jury service, the courts regard a prima facie case is proved and there showed to be a general pattern exclusion that has been an opportunity to discriminate.

The Alexander against Louisiana on last term exemplifies that type of approach and we think something that identical but some sort of similar approach.

The development of a prima facie case is obviously necessary in this field, but the Fifth Circuit’s recent decisions, en banc decisions in the Austin, Texas and the Corpus Christi case reject this idea which is advanced by the briefs, briefs of the United States, and the briefs of School Board in this case that it’s necessary to prove segregation by approving the discriminatory act in every single school in the system.

The Fifth Circuit points out that such a rule has never been argued by the Government before in the whole history of school cases.

It wasn’t long ago that United States was pioneering state-wide school desegregation case against Alabama and Georgia and — and this new notion that you have to prove school by school was a plain reversal where Judge Wisdom said was the tried and true method of proving school segregation, namely the act.

Now, the proponents of the school by school approach must know that they’re demandingly impossible, that such a rule would virtually immunize most school segregation for the challenge.

I mean School Boards don’t keep records and — and very long on this issues, and in this case they weren’t any even maps of attendance those in Denver prior to 1960 and it had to be reconstructed by very laborious and painstaking process.

And the basic figures, statistics about racial counting in schools.

Last thing, that’s a sort of thing that weren’t available for many relevant years.

Now, my second argument is that the pattern of segregation was even wider than the courts below actually held because of some of the legal rulings.

We think that the evidence shows that Manual High School, Manual Training High School is in the classic pattern.

I was about to use the word of Swann, it was school that was established for one race set up for minority group pupils and planned as such.

Now, on that collective brief of the Solicitor General supports that contention that New Manual was established as a minority school with explicit racial segregations.

The little book which is excerpted in the record published by the School Board when Manual was being planned, explained in Exhibit 356 makes it obvious that Manual really was planned for Black and Hispano students as thus the testimony by the — by the then superintendent, Mr. (Inaudible)

James M. Nabritt III:

The book had said that in essence that Manual was going to be different.

This is back in — in the early 1950s before Brown was planned, manual is going to be different.

The people were building the school for replacing the older building, special problems residing there.

They had a long — in the book they had a long history of the racial composition of the school and have gradually changed from white to a majority of black and Hispano.

So, because of the Manual’s different population, they were planning a different curriculum.

Now, Judge Doyle condemned the similar planning of a school in Barrett after Brown but for some reason, he focused on the fact that Manual was planned before Brown as a minority school and we think that’s the wrong point that even though what the School Board was doing didn’t violate the law of the land back before Brown, they nevertheless were engaging in explicitly racial considerations.

And Brown applies just as much here as it does in States which had segregation laws.

There really isn’t time to go into the evidence about Manual about the subsequent boundary changes, but sufficient to say Judge Doyle never found that these boundary changes were rational justified in annual basis – let’s get about some other boundary changes.

But only that he applied some sort of a notion about the burden of proof which we say and argue in more detail in our brief this cast the burden of proof.

A point not made very clearly in the briefs is the integral relationship that Manual atop the feeder pattern of 11 elementary schools in the court area plus co-junior high school which feed pupils into Manual.

Segregating Manual, establishing it as a black school atop all these schools feeding into it obviously is going to have an influence on those other schools.

I mean, a white person living in one of these feeder schools who wanted to avoid for each child the school which the Board had set up there’s the minority.

High school is obviously induced to move out of the feeder school areas.

So, those are — if you’re interested in what the percentages are, if you add manually, its feeder pattern for the northeast Denver schools, then you really do have 74% of the black in school system involved in illegal segregation.

William O. Douglas:

Are the feeder schools all over the city?

James M. Nabritt III:

Well, the feeder schools for Manual are Mitchell, Gilpin, Swansea, Harrington, Columbine, Ebert, Whittier, Crofton, Elyria, Garden Place, and Wyatt.

I would like to conclude by reemphasizing the passage of Swann which points out that school authority’s decisions about construction, location, size of school, and then what kind of policies and triple assignment there will be will determine the racial composition of the student by in each school and assistant.

It’s the School Board’s decisions that determine the racial composition.

They define the neighborhoods for — the neighborhood school policy.

They constantly redefine what the neighborhoods are so that at the very least, our submission is where a school district is found to be engaged in using chance and centrifuges.

The burden shifts to the Board to show that schools which look at every respect like the schools they found to have been illegally segregated except that they have some rational explanation are justified by some compelling interest of the State and that the State’s interest could not have been served by less segregatory results.

Denver had integration alternatives in every step and always rejected them and chose segregation.

Warren E. Burger:

Thank you Mr. Nabrit.

Mr. Greiner.

Gordon G. Greiner:

Mr. Chief Justice, may it please the Court.

My argument will consider the issue of Denver’s provision of the inferior schools and schooling for minority children who are black or Hispano and the provision of superior schools and schooling for Anglo children as constituting a denial of equal protection under the Fourteenth Amendment.

That was the finding and holding of the trial court below in this case after considering comparative evidence of tangible educational inputs and outputs, as well as evidence of the perceptions of principals, teachers, pupils, and the community and in about the schools.

Mr. Nabrit has already covered many of the policies and practices of the respondents which created and contributed to the racially identifiable isolated status of these schools.

The segregated condition, which resulted from those actions, is also irrelevant to the question of education and equality.

But I will consider here only other practices and policies which also contributed to the inferior status of the schools as educational institutions.

Gordon G. Greiner:

I wish to cover the following –

Potter Stewart:

I understand that your argument would stand independently of any evidence of the injurious segregation.

Gordon G. Greiner:

That is correct, Your Honor.

We are not at all dependent on the finding of inequality as being premised on Brown situation of the jury segregation.

Potter Stewart:

The jury, of course includes the action by the School Board.

Gordon G. Greiner:


Certainly, but that’s right.

This –

Potter Stewart:

Your argument is quite apart from any evidence of that.

Gordon G. Greiner:

That’s correct.

Warren E. Burger:

Are you suggesting that by that argument that perhaps there was a non-compliance with Plessy-Ferguson independent to Brown.

Gordon G. Greiner:

Quite true, Mr. Chief Justice, that’s right.

And I would like part of my argument will present some of the types of disparities in the allocations of resources to these schools which we believe clearly violates every holding of this Court’s sense of blessing.

I would also like to cover, as a second point of my argument, the contention that a need for education for minorities and racially identifiable inferior schools denies equal protection.

And finally, that the trial court formulated a remedy for these unequal and desperate conditions which met the standards and thoroughness, the efficiency, fairness, and rapidity while focusing only upon those characteristics of the system which he felt led to the violation as he proceeded.

Now, with regard to the schools in question, the minority schools are shown on the map.

Now, 27 of them to which some 20,000 minority children are assigned, each of these schools have annual enrollments often 29 to only 1%.

The red dots on the map represent those with the Hispano enrollment or a black enrollment in excess of 70%.

Warren E. Burger:

Wait a minute, let me have that again.

Which colors –

Gordon G. Greiner:

The red dots – first of all the red dots are schools that have either 70% black or 70% Hispano.

The blue dots are some additional schools which we feel should also be covered by the findings of violation and that are entitled to the remedy whose racial composition show a combined 70% or more Negro-Hispano involvement.

These schools have over 40% of the Hispano students in Denver and over 86% of the district’s Negro students but only 5% of the districts Anglo students.

There are 22 elementary schools, four junior high schools in Manual Training High School involved here.

In considering what these schools were like, well, Mr. Nabrit has described how the administration refused to transport Anglos and of these schools that how they refused to reassign minority children out of them.

I would like to tell you a little bit about what the record and findings below tell us about the conditions of the schools.

The minority student in Denver found themselves assigned to the school which had twice as many brand of teachers, twice as many probationary teachers and only half as many teachers with 10 or more years experience as compared with the predominantly Anglo schools in the district.

The — this was the result of the administration’s own policies regarding the assignment of new teachers in the district as well as the Board’s policies regarding teacher transfers whereby teachers were recorded preference based upon seniority.

So, let us assume the teacher had some seniority in school, she would then be first in line eligible for transfer out.

William J. Brennan, Jr.:

Was this in the employment contract of the teachers?

Gordon G. Greiner:

Yes, as —

William J. Brennan, Jr.:

Is that the result of collective bargaining?

Gordon G. Greiner:

Well, prior to 1966, the contract provided that teachers assigned to a school, new teachers, had to remain in the school for at least their three-year probationary period.

After 1966, the district even abandoned that requirement and we contended that even further contributed to (Voice Overlap)

William J. Brennan, Jr.:

But I — I — was this the result of collective bargaining?

Gordon G. Greiner:

Yes, it was, it was.

William J. Brennan, Jr.:

That gave the —

Gordon G. Greiner:

However —

William J. Brennan, Jr.:

— transfer options to — to the more senior stint teachers, right?

Gordon G. Greiner:

That’s true but it was not an absolute right that the Board retained the power to both initiate and disapprove of transfer request under the standard of whatever they felt was best for the interest of the school district.

However, the evidence here shows that the Board and the school administration never exercised that power toward the goal of either stabilizing the teaching staffs in these schools or raising the level of teacher experience in them.

Warren E. Burger:

Could the School Board refuse a transfer for any reason?

Gordon G. Greiner:

If in their judgment it was not in the best interest of the district, that was the standard.

Warren E. Burger:

Well then — then the union contract provision didn’t mean very much, is that your argument?

Gordon G. Greiner:

Well, even if it meant something, certainly, there was sufficient power reserved to the school administration to take some kinds of affirmative action to remedy the situation that existed in these minority schools, both regard with regard to trying to improve the level of experience there, as well as trying to reduce the rate of turnover there.

Judge Doyle, in considering the turnover rate in these minority schools, found that it was so high that it was actually disruptive of the educational process going on in those schools.

And he also found that this constant flight of teachers out of these schools contributed to the aura of inferiority which surrounded the school and reinforced the students’ perceptions that somehow his school was a place of less choice.

With regard to achievement data, the administration refused to disclose comparative by school achievement data for over 20 years that failed not only to disclose it to the community but even refused to disclose it to members of the Board of Education as well.

While the predominantly Anglo schools were achieving on the basis of national averages at or above the 60th percentile in general, the minority schools were only achieving at around the 20th percentile.

The administration nevertheless praised the high achievement in the Anglo schools and the low achievement in the minority schools in exactly the same glowing terms.

We have quoted some instances of this in our brief.

Now, this honor and praise by the school administration, both obfuscated the disparity and minority achievement, and we maintain also created and reinforced teachers’ acceptance of low achievement that’s not only the inevitable but appropriate result of these minority schools.

The evidence shows that the administrations set uniformly low expectancy standards with regard to achievement in these minority schools.

In our brief at pages 50 and 51 in footnote 57, we show 14 of the schools all with the established expected achievement levels and it sat a uniform 23 percentile.

At the same time, the school district was setting expectancy at about the 50% to 70% range in the predominantly Anglo schools.

Now, because they have been conditioned by the administration’s expectancy standards, minority student found that his teachers did not expect very much of him that he was neither challenged or motivated to do better.

Although he didn’t do very well, he always seemed to be passed from grade to grade.

Potter Stewart:

Was — the expectancy was based on experience from school, right?

Gordon G. Greiner:

The expectancy now was according to the school district, based upon the calculation of, I believe the term was the interquartile distribution of IQ scores for the particular class at that particular school.

Potter Stewart:

Not on the —

Gordon G. Greiner:

Not on the actual experience in the schools, that’s correct.

Potter Stewart:

— experience expressed in here.

Gordon G. Greiner:

Now, I would like to go on to our second point concerning the law which we believe should apply to this case.

While the trial court did not find it necessary to hold either that the segregation in these schools or their educational inequalities were the product of racial prejudice or odious intent, he nevertheless recognized them to be.

The direct effect to the state action and held that its effect discriminated against blacks and Hispanos but by denying them an equal opportunity for an education.

Thus, our case is very similar to such longstanding precedence of Sweatt versus Painter when the Court was determining whether white and black facilities were substantially equal under the old Plessy doctrine.

The factors considered by this Court included the reputation of the school, the overall quality of the institution as to faculty in the facilities and even is reasonably as this Court’s decision in Swann, the Court pointed as a substantive constitutional violation of the equal protection to disparities where schools do not have like qualities, facilities, or staffs.

This, we maintain is exactly the kind of case found and proved below.

I would like now to pass on to the question of the appropriateness of the remedy which was finally put together by Judge Doyle after a separate four-day hearing on relief.

I’d like to remind the Court that historically, since Brown II, the Court has looked to and relied upon the trial court’s exercise of discretion in fashioning appropriate remedies in school cases and has consistently resisted efforts to limit the tools available to the trial court in formulating an effective remedy.

In this case, Judge Doyle was faced with a practical problem of carrying multitude inequalities of input environment and output as thoroughly, efficiently, and promptly as possible.

Here, he did not take any doctrinaire approach but carefully put together a very (Inaudible) based on the realities of the characteristics of the violations he perceived on.

This broad choice of remedy was made after a special four-day hearing in May wherein the Court’s words, the crucial factual issue of considering is whether compensatory education in a segregated setting is capable of bringing about the necessary equalizing effects or whether desegregation and integration are essential to improving the schools in question and providing equality.

This was not, as applied by the Solicitor General’s brief, a decision made in a vacuum because the trial court had had before it a detailed plan of the Board of Education submitted under Resolution 1565 which was premised on the very same types of special and compensatory programs in the segregated schools which the United States contends here would have been an acceptable alternate remedy.

But the evidence presented at this hearing on relief established that minority achievement is improved and integrated heterogenous environment that attitude no disparities and disadvantages such as teacher expectancy, teacher dislike for the segregated school and so forth are only corrected through a combined program of integration, desegregation, and then a compensatory program in the integrated environment.

Thank you.

Warren E. Burger:

Thank you Mr. Greiner.

Mr. Ris.

William K. Ris:

Mr. Chief Justice, may it please the Court.

I’ve listened with interest with respect to some of the facts that’s been related to the Court and would direct the Court’s attention to basic fallacy that some of the facts related extend many years back prior to the trial of this case or the conditions as existed as of the time of the trial.

Both Mr. Nabrit and Mr. Greiner have related facts that should indicate on the phase that we have a static situation and had a static situation for a considerable period of time when that is not the case whatsoever with respect to the Denver — Denver background.

And this assess the going into some additional facts and figures with respect to Denver itself and the school district, Denver is a home rule city under the Colorado Constitution.

It has the basic area.

There are many suburbs around it, but Denver itself, at the time of trial, consisted of an area of about a hundred square miles that had increased roughly 40% after World War II by reason of annexations to the city from the surrounding area.

Another Colorado Constitution, the school district for the city and county of Denver has exactly the same boundaries as the city and county itself.

And until very recently, the School Board had absolutely no say so as to what areas would be brought into the school district, yet the city and country of Denver wanted to annex it came whether the school district want to do it or not.

Very recently, that has been changed but the change is so recent as not to be contributory.

The School Board itself had indicated is an elective body, seven members has been for some period of time.

The general area of Denver with the recent annexation shown on this exhibit, there are — as indicated on the other exhibit, this was a so-called core city area.

The business district being downtown and the so-called five points area being to the north and east of that area of the downtown area.

William K. Ris:

Prior to World War II, it is true that the black population was well-concentrated in the five points area.

After World War II, a completely different situation existed and expanded, and this requires again some population figures.

In 1940, the population in Denver was 322,000.

In 1970, at the time of trial, it was 515,000 or an increased of 40%.

Now, in comparison to this increase of 40%, the black population in 1940 was 7,300.

It increased, it just doubled in the 10 years between 1940 and 1950 and the great bulk of this increase was after World War II.

So that is 1950 census.

The black population was 15,000 an increased of 100%.

The next 10 years —

Potter Stewart:

Were the school — was the school population be — correlate pretty well with the total population?

William K. Ris:

The — no, sir.

The —

Potter Stewart:

The percentage?

William K. Ris:

The school population went up during the same period, Justice Potter, because of the — basically, increase in — in babes — post-war babies which we are all familiar.

So the — the school population between 1940 and 1970 are just about double.

Whereas the — the city population at only 40%.

Potter Stewart:

Went up by 40%.

William K. Ris:

Yes sir.

So, it made little of a difference.

And the black population itself doubled again between 1950 and 1960, another 15,000 or 15,000 to 30,000 and another 17,000 between 1960 and 1970.

So that the — between 1940 and 1970, when the city population was increasing 40%, the black population increased over 600%.

The Hispano population, we do not have comparable figures, because the 1940 census and the 1950 census did not separately count and tabulate — you know, the Hispanos as a group.

They were merely listed under Anglo, So, all we have insofar as census figures are concerned, in 1960, there were 60,000 in the city, in 1970, 86,000.

So, numerically, they were greater than the blacks but not increasing in the — in the same proportions as in the progression.

Potter Stewart:

Were — were Hispanos identified only by their — by their names?

William K. Ris:

Well, Hispanic surname, that probably is — is the best way of identification and I think that’s —

Potter Stewart:

Is that the way they have been identified in this case?

William K. Ris:

Insofar — insofar as the — as the school district figures are concerned, in this case, they were identified in this one fashion.

Shortly after school opened in the fall, a call — a call would go out to the principals to report back, Anglos, Negros, Hispanos, and Orientals.

The principal would ask the teachers, “Just give me a– a count of what you think is in your room,” and then that would be assembled by schools and have that transmitted in.

William K. Ris:

So it’s a — it’s a rather nebulous type of thing because we have Hispanos, obviously, are ethnic who have names Smith or Brown and we also have non-Hispanos with —

Potter Stewart:


William K. Ris:

Right, exactly.

So it’s — it’s rough but the school district during the years had to — did keep this, this type of census, had followed the same pattern.

Now, so far as the U.S. census, I cannot answer, I just don’t know.

As a result of this influx and this is where we get into — into a very flexible type of situation.

This is City Park, the Square.

It’s about a mile square.

Manual High is right here, Cole Junior High just to the north of Manual.

Now, this was the so-called five points area until after World War II, the — the black population was quite well restricted.

There were some exceptions, of course.

The large number of people coming in and also I think that there is one thing that — that had a great influence on this and that was the Colorado Supreme Court decision which explains that in 1957 that private racial covenants and deeds were void and not enforceable even went through in this Court as in — in holding and an answer of the Court at that time.

So, beginning in — in the late 1940s when the population influx began, York Street, which is just on the east edge of — of City Park, as of 1950, and — and then this is again roughly, but it’s best if we can depict it, became the easterly boundary for the black population.

Between 1950 and 1960, it extended along from west to east and again to the north of City Park, so that what previously was a — a basically white residential area became the reverse.

And in that particular area, for example, in 1940, there were only 86 black citizens in that particular area.

In 1950, it was 898, but it jumped in the next 10 years to 1960 to 8,700 between just to the north of the Park and in 1970, the time of trial, it was up to 10,500.

So that by 1960, the — the population that — the black population had generally moved in and acquired substantial property in this area.

Now, we come into the Park Hill area where you get to the east and extends from Colorado Boulevard which is the main North-South thoroughfare, six-lane main highway and extends on up to the airport.

Those of you who’ve been to the airport, as you come in, you come right down 32nd Avenue Parkway right through that area.

It was a — a typical middle-class, white neighborhood, single-family dwellings except for Monaco Parkway which is more expensive and upper middle-class neighborhood.

And then — and then after 1960, the movement went forward so that the 1960 census showed in the Park Hill area there were only about 500 black citizens.

In 1966, a survey, a private census taken by one of the plaintiffs’ experts showed that there were 12,000 in the Park Hill area, 12,000 blacks have moved in.

And by 1970, the time of trial, the — the census — we didn’t have the census at that time but it’s been determined since it is in our brief, was 18,500.

Now, so we and the School Board at this time with a school district which had neighborhood school sub districts including all of the elementary, junior high, and high schools set up, and these schools in the Park Hill area for example and in the area directly north of City Park were established.

The districts — the boundaries were established but as the black population moved in, another thing occurred.

There are more children per family.

The families were about 25% larger and in some instances families were doubling up in a single residential unit, so there became a very tight situation, an overcrowding in this area.

And that led to an area directly north of City Park where something had to be done and it was at that point that Barrett School was built, and it was planned in a time when there were no figures as to exactly what the population was by race or ethnic origin in this area, but nevertheless, it went ahead as Judge Doyle found knowing that it was in a transition stage and ultimately it became — I think it opened 75 — 70% Negro and all — very shortly, it was nearly 100% but not quite, and that is the history of Barrett.

At the same time, they had another situation over in West Denver, Southwest Denver and they built a school over here at exactly the same time to take care of the — of the overcrowding in this degree, overcrowded area, same size, same plan, and all.

So — but nevertheless, this was following the neighborhood school pattern that already existed and yes, there were new boundaries set up for Barrett but that was merely to cut out from the other surrounding schools that were overcrowded and to supply a school here.

William K. Ris:

They got into a big argument in the District Court as to why it did not extend across Colorado Boulevard.

I will point all the details on that but the principle one being that — two things.

One, the traffic as itself which we all are aware of in setting school boundaries, but the second major thing from our standpoint is that regardless, the way the population actually move that at the time of trial, 10 years after the school opened, it was all black anyway.

So, it had no cause of relationship building in that spot because of the normal neighborhood progression thereafter.

Now, so this was the Park Hill situation over a period of 10 years and what the — what they tried to do about it.

At the same time, these schools were becoming crowded.

They had some talk about mobile units.

Now, a mobile unit is a temporary unit that’s brought in but it’s not merely a trader, it’s on foundations with its own plumbing, heating, air conditioning, so it’s not a second-class facility at all.

The evidence was that the Board attempted too that administration tried to find out from the parents what do they want.

If they want a children bused out or do they want mobile units.

And in one school for example, the parents voted for mobile units, in other school they voted for busing out and that’s what they got in each instance.

But over to the same period of time — well, we may have to go back and talk about Manual just for a moment.

William O. Douglas:

Mr. Ris.

William K. Ris:

Yes sir.

William O. Douglas:

Before you move on, you mentioned busing, does the record show how many elementary school children in Denver are being bused from their respective neighborhoods?

William K. Ris:

Prior to the Court’s order in this case, yes.

William O. Douglas:

As of the time it has (Voice Overlap)

William K. Ris:

Yes sir it does and I can’t tell you just about exactly what it is off the top of my head.

It’s in the — it’s in the record in the brief.

The main problem being that by reason of large annexations in Southwest Denver, I mean in Southeast Denver and Southwest Denver plus this Montbello area that was indicated, there were no money for new construction and they were busing the children in to other schools and so, there was a very substantial number being bused during the same period.

Now, if I may also reply to one point that Mr. Greiner made that they were busing in from Montbello and pass schools and so forth they would be late.

They had — had some facilities, some capacities and that’s why they were bused over.

Now, the whole argument in the trial court was what constituted the capacity.

The plan has took the position that all you did was take the number of rooms in a school, multiply it by 30 and that gave you the capacity and that was a rule of thumb that the schools used just in — in determining how much capacity they had in general.

But as — as Superintendent (Inaudible) justified and he was the superintendent for 20 years, 1947 and 1967, and he was the one who gave the basic history of this period is that the reason they were busing children passed on the minority schools was because they were trying to reduce the pupil per room capacity in those schools and they had extra teachers, they had current professionals, they have the lower pupil-teacher ratio and with — by a reason of the special clients in these minority schools, if they had a lower number of pupils per room but instead of being given credit for, they are being damned forward on a mathematical basis in effect.

And that — that is where we get into some of these capacity problems.

It has to be looked at in the context in which these schools were being utilized at that time.

William J. Brennan, Jr.:

Was there any affirmative pairing of white and black schools for the purpose of busing —

William K. Ris:

No, sir.

William J. Brennan, Jr.:

— from a neighborhood to another?

William K. Ris:

No sir, there was not.

The sole reason for busing was due to over — overcrowding in some schools and that — but in most instances, in the large, large percentage of busing that was going on was because of no schools in — in the particular areas.

They’ve been abolished in 1967, for example, which had gone down defeat.

And although during the 20-year period of Dr. (Inaudible) tenure, they spent over a hundred million dollars in need for a construction.

That doesn’t mean only schools with additions and remodeling and so forth and they build over a hundred new — over a hundred new schools or addition, these two schools.

Nevertheless, with this rapid increase of doubling of the school population in the 20 years, they just could not keep up with it and then when they got whipped on the bond issue, there was nothing to do except keep busing until they find the funds available for the new construction.

Now, as — if I may go back just for a moment to New Manual.

Manual High School was a school in the core area.

Now, it was not always a black school.

At one time though, it had a racial mixture of Anglos and — and Hispanos and Negroes and Orientals.

There were small percentages of Orientals in that particular part of the city.

The school was an old one and so, when it came time to reconsider what is to be done in the early ‘50s, they decided that they would try to reconstruct the new school in the same site so they acquired adjacent land and ultimately build the school in the adjacent land and told — tore the old school down (Inaudible)

William J. Brennan, Jr.:

Is Manual an Arts High School or a vocational?

William K. Ris:

Well, Mr. Justice Brennan, there’s a reason they called Manual Training High School because it originally — it was intended to do — apparently to give considerable amount of vocational training.

Now, this is before the New Manual field and that was actually its name and probably it had an aura of — well not — of a non-academic type of school, but it was a high school offering all of the high school curricular plus these other vocational courses.

Now, when it came time to construct New Manual, the school district went overboard on whether it was going to do in trying to build a school that would take care the needs of the pupils in that area and that is — that is one of the arguments that is made in the plaintiff’s brief that the school district hasn’t done, but here they were doing it and trying to do exactly that, to find out what particular needs of these pupils were or these children needed over the long haul for their own benefit in considering their own circumstances.

And it is true that it’s a low socioeconomic area and not too many of the children went on to college but they needed special attention and this is what the administration was trying to do.

Potter Stewart:

It was an area of high school always, wasn’t it?

William K. Ris:

Yes, Your Honor.

Potter Stewart:

I mean the high schools as well as the elementary and junior high schools have been neighborhood.

William K. Ris:

Yes sir.

Throughout the city.

This is true in every way, not merely in — in the core city area, but no matter where you go.

Potter Stewart:

Now, look down there.

How many high schools were there?

William K. Ris:

Well, there were originally five, North, East, South, West, and Manual.

And now, there are eight — nine — nine.

Potter Stewart:

Among the five, Manual is the only one which was predominantly non-Anglo?

William K. Ris:

Well, non-Anglo, yes sir, and at the time that Manual was in the planning state, so they could determine how big to make it and what kind of facilities to provide or to provide shops or what type of shops and so forth, they had it on a brochure.

They sought suggestions of the — of the community, had many meetings and it was a wide open discussion with the administration and the Board as to what they were going to do.

William K. Ris:

And as a result of this, they finally decided on the new school and what it was to offer.

And as I say, they opened in the same location.

The old school was closed and the new school opened in the same location, same boundaries.

And when it opened as the evidence shows, it had 41% Anglo, 28% Black, 24% Hispano, and 8% Oriental, which is just a good solid racial mix.

And so, it was not 99% Black.

It wasn’t 99% Hispano I think in sort.

So that — that was a basis of —

Potter Stewart:

It was the only in high school that was — that had a majority of non-Anglo.

William K. Ris:

At that time, yes sir.

Potter Stewart:

And it — was there any — was there any high school in the — among the five that were presently among the nine that was at the other hand of the spectrum in its orientation that was a college preparatory school?

William K. Ris:

Basically, yes sir —

Potter Stewart:

One or more than one?

William K. Ris:

Well, in the mainland, will there be more than one, actually.

There’d be George Washington High School, George Washington and Abraham Lincoln in the southeast — in the southeast and George Washington here and then Thomas Jefferson clear down here.

Now, economically, they no medium incomes are in the core city in the Hispano area, there’s no question about it.

The higher incomes —

Potter Stewart:

Are in the south.

William K. Ris:

— are in the south and southeast, Jefferson and — there are more children who go to college for example from those schools.

There’s no question about it.

Potter Stewart:

And those schools too were — even though they were High Schools, they were neighborhood schools.

William K. Ris:

Yes, sir.

Potter Stewart:

There was no opportunity for a young man or woman interested in getting a college preparatory or oriented to high school education who lived in the core area in going to one of these schools.

There’s no opportunity at all, is that right?

William K. Ris:

Additionally, there was not.

Manual offered a full curriculum for college grads.

And then later on and before the trial or after 1964, there was a gradual evolution on transfers.

First, it was a — called a limited open enrollment in 1966, and in about 1968, with a voluntary open enrollment which allowed any child in any school in which he was a majority to transfer to a minority school with transportation provided, and that has been true since 1968.

But historically, that was not true.

So, we have basically done the — there are the constructions made as the one board member testified, two of them as a matter of fact.

We had a need in this neighborhood, we built a school in the neighborhood and just followed the same neighborhood pattern in cutting out the Manual and did what seemed the best thing for the kids in their community and without modifying the neighborhood school.

William K. Ris:

Now, there’s three resolutions identifying a — you know and under that particular point.

As a result of the influx into the partial area, these schools, the grade schools were fast becoming imbalanced play.

No question about it.

And there were — so we had Barrett.

The new school was constructed, Stedman and Hallett.

And then, those three added the Smiley Junior High.

In no time, as there any change of boundaries at Smiley Junior High, even though it became Black by reason of the population moving in.

But as a result of this impact, the blacks moving into the Park Hill area, there was a concern and the Board took cognizance of it and as each will know, a black member of the Board, a very conquering woman was the main focus on this and as a result of various resolutions, they finally got to the point where the superintendent was asked to prepare a plan to attempt to control the racial imbalance in Park Hill, and that is where they began the three resolutions.

Of the various schools, it provided and related to only four predominated black schools, Barrett, Stedman, Hallett, and Smiley Junior High.

As a result of these schools, there would be a change in boundaries within the sub-districts so they would no longer be completely contiguous around the school and they would be moved out to some of the predominantly Anglo schools and some of those children moved in by similar changes.

And as to Barrett and Stedman and their feeder, Smiley, — Hallett, they ran into a — into a different plan and tried to go into the — a voluntary plan whereby children predicted in southeast would be induced to transfer into Hallett voluntarily and Hallett children out.

So basically, insofar as the mandatory movement is concerned, it applied only to the three schools.

And then there were some compensatory education features that tied into that.

Warren E. Burger:

That busing, that transportation you just alluded to would be something less than 10 miles I would just assume?

William K. Ris:

Yes, sir.

And then, as a result of the decision where a lot of these resolutions were adapted during the spring of the year, January to April roughly.

There was a School Board election in May, the new members took office in June.

So, instead of a four or three majority one-way mandatory busing of these children out from these three schools, there was a four or three the other way and they resented the resolution as to the mandatory busing out substituted a voluntary plan to correct this imbalance or attempt to correct it and retained the other features of the plan.

And as the superintendent testified, this is merely beginning.

This is the very — the first step in the test to see if we — what we could do on this imbalance in the area.

And also, secondly and this is important, to see whether busing out and — of the changing schools would affect the achievement of these pupils as he said he was not convinced in the state of the Social Science Education or Social Science.

Nobody had any empirical evidence to say whether it would or would not.

And so, this was his first attempt to try to see what could be done in this regard and so, it was not a — an absolute thing.

It was merely one step into developing educational program which he had recommended the Board.

And when it was — when they took the mandatory part out of it and substituted busing, they didn’t changed anything except that one phase of it.

And also, what is the most important is if not a child had been bused to this point, nobody have been moved out so they are being moved back, and there was no — there is nothing that had been done except some preliminary planing to implement the superintendent’s recommendations before the decision was made.

So, it’s not the type of situation whereby children that were in one school and being moved back into a minority school and by the reason of their race.

As to the teacher training or as to the inputs and outputs, that may come in on that brief.

Warren E. Burger:

Well, by input, you mean expenditure and by output, you’re talking about performance result?

William K. Ris:

Yes, sir.

William K. Ris:

Before I get out of that, I — I jumped a little too fast here.

Insofar as the entire school system is concerned, Judge Doyle, the district judge made one finding that just stands out, head and shoulders, above everything else in — in the record.

And he stated, “It is to be emphasized here that the Board has not refused to admit any student at any time because of racial or ethnic origin,” and this remark was being made as to the entire district.

Warren E. Burger:

Where were you reading from?

William K. Ris:

I’m just reading from my notes, Your Honor but –

Warren E. Burger:

Well, don’t take the time now.

William K. Ris:

All right.

In page 67 (A) of the appendix, that page (Inaudible)

He goes on and says, “It should be emphasized here, the Board does not refuse to admit any student at any time because of racial or ethnic origin since it requires everyone to go to his neighborhood school unless it is necessary to busing (Inaudible)”

And that was a basic fact finding insofar as de jure segregation is concerned and the allegations have been made.

This Court found that insofar as the traditional classic title of the de jure segregation, dual system that it just did not apply to the Denver area.

Now, the Court also referred to a couple of small boundary changes in the Smith and Hallett, black-white, (Inaudible) for example in 1962 and 1964 in which he merely referred to those as being some evidence of intent going to the rescission of the three resolutions in 1969.

When it came to the Court of Appeals, the Court of Appeals never ruled out the decision as being a violation or non- violation.

The Court of Appeals merely said.

“Well, Barrett knew where it was and the boundary changes in the other two schools constitute a executory act.”

Again, getting back to the basics as to what constitutes a constitutional violation, there has to be a State Act and it has to be cause and relationship.

But the whole history of this after 1962 and 1964 was in this whole area.

It became so concentrated with blacks that there’s actually no cause in relationship in the record and can’t be under the — under the facts and figures as to that particular area.

Potter Stewart:

All right.

As I understood, the — what the Court of Appeals did was, as you just said, not to decide whether or not the rescission was itself a violation.

William K. Ris:

Yes sir.

Potter Stewart:

But putting that question alongside, simply said that the original plan was in fact a remedy, isn’t that what the Court of Appeals did?

William K. Ris:

I’m sorry, I didn’t follow you in the last part here.

Potter Stewart:

Well, the Court of Appeals didn’t pass.

William K. Ris:


Potter Stewart:

It did not decide on whether or not the rescission was by itself a constitutional violation.

That’s corrected and applied.

The Court of Appeals feel it did have to pass on that.

William K. Ris:

They said, “Well, we find that there was already a violation by raising boundary changes and that is in the construction there but they neglected.

Potter Stewart:

— and approved the district court’s remedy in that area.

William K. Ris:

Yes, indeed.

Potter Stewart:

That’s what I thought.

William K. Ris:

— and I apologize for it.(Voice Overlap)

William H. Rehnquist:

In any effect, they say that even though the repeal of the rescission resolution might not be an act of segregation by itself by reason of the previous situation.

The situation demanded a remedy and the remedy that the district court adopted, saying, “Go for with the rescission resolution or with the resolution before the rescission was in appropriate remedy?”

William K. Ris:

They used the same remedy but never actually ruled on the rescission itself as being a constitutional violation.

Yes sir.

Throughout the — throughout the whole discussion on this when we’re talking about Manual, talking about the legal boundary issues and so forth, our principal complaint about the Court’s findings and the plaintiff’s position is that the cause and relationship is still absent in the evidence and therefore, the first cause as being pointed out, there were insufficient evidence to find the constitutional violation there.

Now, as to the second cause, we get into the neighborhood school situation and he called it educational opportunity.

Now, counsel says they’re relying solely on Plessy here.

So I think that they’re worried on that.

What is – he called it equal education.

I’m not prepared to answer, that is to give the definition of it.

What is equal justice?

A person is entitled to a counsel in a court if he’s in charged with a crime.

As this Court has ruled, the appeals and has not funds, this entire transcript.

So, and so far as providing resources are concerned, that is something the courts have taken cognizance of.

Insofar as guaranteeing results, that is something else again and when we’re talking about – he called it educational opportunity.

Too often those two things are confused and what — if Plessy is what they’re relying on, in a typical Plessy situation and have unequal allocation of buildings and equipment, of the supplies, of transportation, of teachers, and so forth.

Now, what are the findings here?

At the trial, there is a great attempt to show that the buildings were inadequate in the — in the core city schools.

There’s a small ridge, only added 1.3 as compared to 1.1, that’s not the exact figure but that’s comparable to it.

The Court — the trial court found that in the – in favor of the defendants at a particular issue on the buildings.

And the court held that by reason of the evidence that — that there were new additions to the older buildings that they were remodeled and they had adequate modern lighting, modern ceiling and so forth, that there was no unreasonable allocation there.

There is no evidence of any inadequacy in any of the equipment or in any of the supplies.

There is no discrimination in transportation of the people who had to be transported, they’re all transported in the same buses.

There is no discrimination in the extra-curricular activities and sports program.

Insofar as allocation and moneys were concerned, the only evidence was that these schools were allocated a greater amount than the other schools.

This included, not federal funds and state funds, but they did have a greater allocation of money.

Warren E. Burger:

Well, when you said they, do you mean the schools that are being challenged?

William K. Ris:

Yes sir.

The school with the lower — or with the lowest achievement results.

So that basically, the only thing that the Court draft or came up with at all was a matter of teachers, teacher experience.

Now, every teacher in Colorado has to be a college graduate, have a degree, being licensed by the State.

And even the trial court did not find that there was such a disparity here between the teachers’ comment about it as an addition is what the trial court used all the way through, various rendition of inferiority.

Some of which were resources that are complained of by the plaintiffs and others were the achievement results, for example, the dropout.

It has to be kept in my mind that some of the causes potentially and some effects, but the teachers were the only thing that the district court even alluded to.

There is an issue of inferiority (Inaudible) and the Court of Appeals held that that was not such a substantial factor as to constitute an unequal resource being furnished.

And even the evidence itself did not support that.

Dr. Coleman, for example, stated that the experience of teachers is far overrated.

Some of the —

Warren E. Burger:

Whose witness was he?

William K. Ris:

He was the plaintiff’s witness Your Honor.

Warren E. Burger:

Is he the one who’s footnoted, his testimonies footnoted in the government’s opinion, his reference to the difficulties of — well, go on.

I don’t want to hold up the hearing.

William K. Ris:

Yes sir.

William J. Brennan, Jr.:

The input of financial resources, are data available in the record as to the per pupil cost in these schools on separate basis or is that maintained only on a system-wide basis that people —

William K. Ris:

I’m trying to — I’m trying to think of what — of what exhibit might be available to disclose that then in the (Inaudible)

I — I don’t believe there is on a per people or even on a per school basis if it was a general testimony, and I’m not sure they have any statistics in the record yet.

Warren E. Burger:

Well, is there a specific finding on that?

William K. Ris:

On that?

No, sir.

But there’s not a specific findings in the contrary that was the sole evidence.

Warren E. Burger:

In other words, Judge Doyle made no finding either way that the per capita expenditure was greater or less.

William K. Ris:

He found inferiority —

Warren E. Burger:

— in this totality?

William K. Ris:

In totality, but the only — the only thing that he referred to specifically, insofar as allocated resources was the younger teachers, plus inexperienced teachers.

Beyond that, there was talk about dropout rates, lower achievement scores and so forth.

On the achievement scores, of course, as the Attorney General’s brief points out, he took the achievement’s course.

He took the fact of arrangement balance and put the two together but without any evidence, without any finding really of cause relationship.

William J. Brennan, Jr.:

Do they also suggest — am I wrong and that at least there is some of the buildings that they were older and inferior?

William K. Ris:

They were —

William J. Brennan, Jr.:

That some of these —

William K. Ris:

But he found expressly the — Mr. Brown that it was not the substantial factor and not a really material fact.

He request the — I I kept the moment to point out exactly where this is to find.

William J. Brennan, Jr.:

Well, don’t bother.

I have questions and something I’ve asked her —

William K. Ris:

Yes, Your Honor.

William J. Brennan, Jr.:

— disparity and the quality of the —

William K. Ris:

He expressed the client that it was not a potential contributory factor into inferiority.

Warren E. Burger:

Well, as I recall, one of the plaintiff’s expert witnesses said the age of buildings have relatively little if anything to do with the performance of the students, is that correct?

William K. Ris:

I think that is correct.

And I think which one it was that that’s going again at co-counsel.

Insofar as the other factors on relationship, the plaintiffs relied on various experts, Dr. Dan Dodson who was the only expert to testify to hearing the merits than on the hearing of the remedies, Dr. Coleman, Dr. O’Reilly, and these were called in and Dr. Sullivan.

All of whom had no knowledge whatsoever of the Denver situation.

They never studied Denver situation.

They had no statistics on Denver.

They were talking merely as educators or sociologist or psychologist from other parts of the country.

One originally from Berkley, down in Massachusetts, and other psychologists from the New York State Board Education and of course, they had Dr. Coleman.

But again, insofar as finding a causation between racial imbalance and educational achievement, the record insofar as any virtual evidence concerned is as completely signed.

Dr. Coleman was with of the opinion that it was a basically a culture deprivation in the lower socio-economic family groups and neighborhoods.

And that only to the extent that minorities were found in those particular areas.

Was there any relationship at all?

But he was looking solely of the family background and the cultural background of these children.

And Dr. Dodson went on agreeing things about various attitudes in this community and of teachers and pupils and parents and so forth, not with any relationship to the Denver situation but just generally as a — as a sociologist might do, and again, a complete lack of cause relationship.

Dr. O’Reilly, who is called in rebuttal by the plaintiffs and the remedy hearing pointed out that this whole manner of educational equalities, the very unsettled appeal, said many years of experimentation would be necessary to slowly and carefully identify and develop the program to try to eliminate it.

It’s an educational process.

So as far as the quarter of schools, we have a finding by the Court, the trial court, which not attacked here that if it is not a Brown situation, no Brown constitutional violation by reason of the evidence concerning the so-called inputs or the allocation of resources except for the teachers and even the Court of Appeals so that there was no plus evaluations.

So that what do we end up with?

We end up with an educational problem that the educators have no answer for.

William K. Ris:

The state of the science has not such that a district court can decree you shall do this, that and the other thing, but it is something that Dr. O’Reilly said, as Dr. Gilberts, the superintendent of the schools who was the principal expert of defense says, “As we worked out over a period of time.”

And we suggest to the Court that this is something that is being done and has to be done but it is not a constitutional violation to remedied.

It’s an educational problem which has to be handled at a local level and it’s something that is beyond the confidence of the federal judiciary.

The educators served with all their know-how or having a harder time and certainly, it’s not something that can be decreed in such as furnishing counsel, furnishing transcript, furnishing people’s facilities of physical nature.

And so, basically, on one hand, we say that there’s no constitutional violation and therefore, there is no remedy and even if there were constitutional violation, we have to compensate the courts.

Thank you.

Warren E. Burger:

Thank you Mr. Ris.

Mr. Nabrit you have six minutes remaining.

James M. Nabritt III:

Thank you Mr. Chief Justice.

May it please the Court.

We see the whole case as a de jure case.

I think that the relationship between our two arguments is very well illustrated by this Court’s decision in 1965 in the case called Rogers against Paul.

That was the case to desegregating in Arkansas school system, where the desegregation was proceeding at a greater year of level under the deliberate speed doctrine.

And yet, when black pupils in the high school grades were able to demonstrate in this Court that they were unable to get classes and curriculum in the black school that was offered in the white school, this Court carved down an exception to the deliberate speed doctrine and said, “Under Brown or under Swett, paid her under a combination or merger of the two theories, this was a violation of equal protection with few remedy by integration.”

Now, the remedy in the Swett case was integration, the remedy in the (Inaudible) case was integration and it wasn’t just based on some sort of theory of achievement that human sweat might graduate from law school and not be a lawyer.

The inequality was in the — the opportunity he had and the barriers are put in front.

So, we represent the constitutional rights and claimers, the deprivation for the students that fetches at the top of the class at Manual as well as the student that does speak well.

Now, we think that for any quasi justice is just for segregation.

There should be no single doctrine or remedy for inequality and we don’t urge that sort of a proposition.

What we urge is that Judge Doyle was at least with him at the discretion and listening to this evidence and listening to the particulars of how the School Board said they would going to remedy the inequality, they concluded — well, it doesn’t — it won’t hold order or maybe (Inaudible)

The way that seems most official, most sure to accomplish equality is to put the pupils in school together, and it was that sort of overall judgment, we think Judge Doyle may.

About the question from the Court about the age of the buildings, what Judge Doyle said at Page 61 in 313 Federal Supplement is, “However, we do not think that the age of a building and cite sizes are in and off themselves substantial facts as affecting the educational opportunity offered at a given school.

However, we do recognize that in schools which are segregated, have less experienced teachers, produce generally low achieving students.

The fact that the physical plan is old may aggravate the aura of inferiority which surrounds the school.”

And we are talking about the 19th Century schools.

We’re talking about schools that are built in the last century which in — in the old part of the city.

Mr. Justice Powell asked the question about the busing statistics.

They are set out at page 26 of our brief.

In addition, there are two maps in the original record not pretty less but large amounts which show the bus routes.

They are plaintiffs’ Exhibits 390A and 390B, which they show the people’s crisscrossing the city.

James M. Nabritt III:

There is one exhibit about Manual which is printed.

That’s the school of booklet that the School Board are published before they set up the school.

It shows what they were doing.

It shows the establishment of a dual school.

And these are only excerpts from the booklet printed here but the whole is in the record filed with the clerk.

On this question of the decision, Judge — with the no fancy constitutional theory, it is necessary to support Judge Doyle’s conclusion that what this showed in the factual context of the case in the series of things that got going on with relation to these schools was what Judge Doyle said with both of purpose and effect to keep Black get segregated as they are not his family.

So, —

Lewis F. Powell, Jr.:

May I ask you a question at that point?

I think I have the same view that Judge — Justice Stewart expressed that both of the courts below had found that the segregation in the core area was not the result of the de jure state action.

Now, let’s assume for the moment that this Court concluded that if it were bound by that finding, would it be our position that this Court should then consider or reconsider whether or not the distinction between the de jure and de facto segregation is now a valid one?

James M. Nabritt III:

Mr. Justice Powell, I would give my answer by saying that — I’m dividing the two parts.

I’ll say, first on the state action question that we agreed entirely with the process of Solicitor General.

It’s the State running the schools that they determined the racial composition of the schools, so the real question is whether or not there’s been discrimination which violates the Constitution on this record.

And I would say that it is not — I would say first that it is not necessary on the record to reach that issue of whether or not — whether or not segregation is illegal if there was no racial discrimination.

But on that question, I would think that certainly, discrimination is inferable from the facts, the facts that both courts below agreed to.

That — that there is segregation pattern, that the School Board did have all these opportunity and control, that there was widespread — spread bias in the system and that — and because of the known inequality of the schools.

Now, there is one — one absence in — in this record and that is the absence of any — of any evidence about the important factor which is what caused the — the housing segregation, whether that — Government was responsible for that.

There are other cases they litigated where they are including some pending on certiorari where that — that question has been — that has been addressed in evidence and — and that fact findings by the courts on it.

We — we don’t think it’s necessary to — to reach that —

Potter Stewart:

There’s no evidence on that in this record.

It wasn’t canvassed at all in this case?

James M. Nabritt III:

That — that wasn’t litigated here because we’ve placed it at the jury —

Potter Stewart:

And I asked you — Yeah, I don’t — I really don’t understand your answer so far to Mr. Justice Powell’s question.

Let’s assume that we accept the findings of two courts below that there was no de jure segregation in the core area of Denver.

Those were the findings of the two courts, is that correct, in this case?

James M. Nabritt III:

But that was their — that was their holding that they find themselves.

Potter Stewart:

Let’s assume we accept either because we have to because we’re chose to.

Let’s assume we accept that.

Then, does this case present, as I understood Mr. Justice Powell’s question?

Does this case present the issue about whether or not the distinction the Court has previously made between de jure and de facto segregation is an invalid and unsupportable distinction?

James M. Nabritt III:

Well — if this — faced with that decision, and I — I would still argue that we should win the case.

And based on that —

Potter Stewart:

(Voice overlap) your question however.

I’m sure you’re arguing that I —

James M. Nabritt III:

Well, I mean I would — I’d be willing to follow it up to — to its logical conclusion if I had to, but that the inequality argument justifies relief without regard to — to — and –and indeed that the School Board so can — really does control the racial composition of a school.

Potter Stewart:

Just by denying that, even by its inaction in the — in the phase of changing neighborhood patterns.

By its inaction in correcting predominantly non- Anglo schools by abolishing the neighborhood school system that that’s enough to violate the Constitution, just by standing by and seeing these neighborhood shifts?

James M. Nabritt III:

Well, I — I don’t — I don’t envision any real — realistic record as involving only inaction but determining hard and that — that certainly might be part of it.

Potter Stewart:

We began — we began at this point —

James M. Nabritt III:

Let us say they make — they make decisions.

Potter Stewart:

We begin on this question by assuming that they took no affirmative action to segregate.

That’s the basis of Mr. Justice Powell’s question.

That there was no affirmative segregative action on the part of the School Board in the core area.

James M. Nabritt III:

I — I think that as a –as a matter of — of making a prima facie case of — of violation of the Constitution, that plaintiffs can do it by showing whether it is a substantive rule or not, I don’t know.

Certainly, in terms of — of making out a prima facie case, a discrimination, plaintiffs can do it without showing what the Court of Appeals called odious intent. Maybe the — the — if — if the Court, I don’t know any other answer, Mr. Justice Stewart.

I’m not trying to evade the question.

It’s certainly open to the Court to reach the de facto issue here if it — if it so chose, I — I would think.

What we are urging is that it’s not necessary and — and if the Court found it necessary to reach that issue, then we would urge that — that in any of that, we should win the case that — that whatever discriminatory intent or — or if discriminatory intent or at least intent is necessary that it’s inferable for a prima facie case which requires that the — that it be rebutted.

William H. Rehnquist:

Mr. Nabrit, my understanding of Justice Stewart and Justice Powell’s question is supposing we reach there with the point where we find it discriminatory and it’s not inferable.

Then — then why with — with respect to the Court, then what do you ask us to do, to –to reconsider the distinction in de facto and de jure?

James M. Nabritt III:

I — I would argue the proposition alternatively as a question of approving a prima facie case, I know is a substantive question of substitute law.

I — I think that the School Board is really — are controlling the race and composition of the schools, and that — and that segregation and deliberate segregation is widespread.

So that when you show an element such as what we have here, a situation to use Judge Doyle’s phrase that looks just as if they deliberately segregate and –and if Judge Doyle said, “The results are just the same,” as if they had a segregation policy, but what I find here is that they had A) an explanation, a rational justification for this.

I say that’s not enough, that they have to have a compelling justification for producing this kind of segregatory result whether they — with or without an attempt.

I hope that’s the complete answer.

I know I’ve gone over my time Mr. Chief Justice.

Warren E. Burger:

Thank you Mr. Nabrit, Mr. Greiner, and Mr. Ris.

The case is submitted.