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New Decision in Topeka Case Details Deep Rift Over Court's Continued Role

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A reissued decision in the Topeka, Kan., school-desegregation suit gives a more detailed picture of a federal appellate panel's deep division over the need for continued court supervision in the historic case.

Two of the three judges hearing the case for the U.S. Court of Appeals for the 10th Circuit last month reaffirmed and expanded on their June 1989 opinion that school officials have not exhausted all "feasible" means of desegregating the district. (See Education Week, June 14, 1989.)

But in a strongly worded dissent that was released for the first time, Judge Henry Baldock, the third judge on the panel, attacked the reasoning of the majority and accused them of improperly ignoring a lower court's factual findings.

Lawyers for the Topeka school board last week filed a petition for a rehearing of the ruling, with a suggestion that the case be heard by the entire 10th Circuit court. The board will not decide whether to appeal the panel's ruling to the U.S. Supreme Court until the rehearing petition is decided, according to a lawyer for the district.

The case, Brown v. Board of Education of Topeka, provided the vehicle for the High Court's landmark 1954 decision outlawing racial segregation in public schools.

The Court has yet to settle the questions of when and how school districts under desegregation orders can be freed from federal-court supervision.

In the documents newly issued by the 10th Circuit panel, the judges explain their stances in great detail. The majority wrote a 94-page decision, while Judge Baldock filed a 154-page dissent.

The judges disagree on two major points: whether the Topeka system is currently segregated, and whether the racial disparities that exist in student enrollments and faculty assignments are vestiges of past discrimination or are a consequence of demographic factors outside the district's control.

In 1985, when the current issues in the case were tried, 27.2 percent of Topeka's elementary pupils were members of minorities, and the enrollments of minorities in individual schools ranged from 7.2 percent to 61.9 percent.

Both Judge Baldock and the federal district court that tried the case declared the system to have met its legal burden of desegregation. Although they acknowledged that some imbalances remained, they attributed them to housing patterns and other factors outside the district's control.

In addition, they cited the district's efforts to implement "effective schools" research as an indication of a commitment to educating minority children.

Because the system is desegregated, Judge Baldock and the lower court concluded, the black plaintiffs must prove that recent actions of the board have been intentionally discriminatory in order to obtain further relief.

But the appellate panel's majority said the lower court was "clearly erroneous" in reaching such a conclusion, and traced the current racial disparities to the dual system that existed before the 1954 decision.

By proving that racially identifiable schools still exist, the majority ruled, the black plaintiffs succeeded in shifting the burden of proof to the school board. And the board, it said, failed to prove that such segregation has no causal connection with the prior de jure segregation and that the district has carried out the maximum practicable desegregation.

Unlike many other districts ordered to dismantle unconstitutional segregation, the majority noted, Topeka was never required to institute mandatory busing or create magnet schools to promote voluntary integration. The district instead adopted a "race neutral" neighborhood-schools assignment policy and accomplished a certain degree of racial balance through school closings and boundary adjustments.

"The lack of evidence or any attempt to argue that further desegregation is impracticable is perhaps the largest flaw in the school district's case," the majority wrote. "When it can be said that Topeka can do no more to eradicate the effects of past segregation and segregative acts, the Topeka school system may be declared legally unitary."

The Supreme Court is likely to be asked in several pending cases to issue a definitive ruling on several is8sues raised by the Topeka case.

One of the other suits led to a 10th Circuit ruling requiring further desegregation in Oklahoma City, an opinion in which Judge Baldock also filed a lengthy dissent.

The depth of disagreement in both cases was underscored by unusual procedural moves. The majority in both cases issued their opinions earlier this year without Judge Baldock's written dissents, then withdrew and reissued the decisions with new references to Judge Baldock's arguments.

None of the judges have indicated any reasons for the unusual moves, but lawyers involved with the cases speculated that they were attempting to clarify their arguments against the possibility that the High Court would review the cases.

In a separate development, a federal judge has approved a settlement capping Arkansas's financial obligations in the Little Rock school-desegregation case, but rejected provisions on how the money should be spent.

Instead, U.S. District Judge Henry Woods indicated in an order released last month that the spending of the $130 million in state funds would be controlled by a court-appointed desegregation supervisor, Eugene T. Reville, the former superintendent of the Buffalo Public Schools.

Judge Woods criticized the three school districts involved--Little Rock, Pulaski County, and North Little Rock--for suggesting that some of the settlement money could be used to cover non-desegregation-related deficits. In addition, the agreement called for a prohibition on new interdistrict magnet schools, an option that Judge Woods was not willing to see foreclosed before he determines what further desegregation measures may be necessary.

The districts contended "it is none of the court's business how the money is used," he wrote. "Let there be no mistake. ... The money provided by the state will be used for its intended purpose."

The judge also chastised Little Rock school officials for failing to implement educational enhancements in the district's remaining all-black schools, and reduced fees for lawyers representing black intervenors in the case from $3.15 million to $850,000.

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