Full opinion text
TABLE OF CONTENTS INTRODUCTION ......................... 849 I. Positions of the Parties................ 850 A. Plaintiffs ....................... 850 B. Defendants...................... 851 II. Summary of Discussion................ 852 III. Synopsis of Conclusions................ 860 DISCUSSION ............................ 861 I. Pre-1975 School Desegregation Cases Considered by Sixth Circuit: Held to Have Changed No Law Applicable to Deal..... 861 A. Green, Raney, and Monroe: Considered by District Court and Sixth Circuit in Deal II, 1968, 1969 ....... 861 1. Conclusion of District Court and Sixth Circuit: Inapplicability of Green, Raney, and Monroe to Deal 861 2. As Remedy Cases, Green, Raney, and Monroe Were Inapplicable to Deal 864 B. Swann and Keyes: Considered by the Sixth Circuit in Bronson, 1975 ....... 865 1. Inapplicability of Swann to Deal 866 2. Keyes: No Changes in the Law of School Desegregation Warranting Departure From the Application of Collateral Estoppel .......... 867 a. Keyes: Supreme Court Holding That a Finding of Contemporary De Jure Segregation in a Portion of the School System Is Highly Relevant in Assessing Claim of Current, Systemwide De Jure Segregation ..................... 869 1. The District Court ...... 869 2. The Tenth Circuit Court of Appeals............. 870 3. The Supreme Court ..... 870 b. Sixth Circuit’s Discussion of Keyes in Bronson .......... 874 c. Most of the Principles Developed by the Supreme Court in Keyes Were Not Directly Applicable to Deal Because, Unlike the Keyes Plaintiffs, the Deal Plaintiffs Failed to Prove Contemporary De Jure Segregation in any Portion of the Cincinnati School System 875 II. Columbus and Dayton II: Post-1975 School Desegregation Cases, Not Considered by the Sixth Circuit in Connection With Deal and Bronson......................... 878 A. Preliminary Comments ............ 878 B. Evolutionary Developments: Extension of Keyes’ Principles to Non-Statutory Dual School Systems, Created and Maintained by Remote, Intentionally Segregative Acts ................. 879 C. Reconsideration of Deal in Light of Columbus and Dayton II: Conflict in Legal Principles.................. 883 1. Re-examination of Deal: Legal Import of Historical Facts ...... 883 2. Sixth Circuit’s Position on the Legal Import of Historical Facts in Deal Unaffected by Pre-1975 Supreme Court Desegregation Cases ....................... 886 3. Sixth Circuit’s Position on the Legal Import of Historical Facts in Deal Compared to Supreme Court’s Position as Developed in Columbus and Dayton II........ 887 a. Re-examination of Columbus and Dayton II............. 888 b. Supreme Court Position on Evidence of School Board’s Remote Discriminatory Practices Offered to Meet Plaintiffs’ Initial Burden of Proof 891 e. Sixth Circuit’s Position in Deal II Eliminated as a Viable Legal Option Under Columbus and Dayton II............. 892 III. The Sixth Circuit 1975 Bronson Opinion and the Application of Collateral Estoppel • In Light of Columbus and Dayton II..... 894 A. Collateral Estoppel: General Principles and Necessary Inquiries........ 894 B. Sixth Circuit 1975 Bronson Opinion: Conclusions as to Appropriate Application of Collateral Estoppel.......... 898 C. Appropriate Application of Collateral Estoppel In Light of Columbus and Dayton II....................... 900 1. Broader Rules of Res Judicata Inapplicable.................. 900 2. Identity of Issues In Light of Columbus and Dayton II........ 900 a. Collateral Estoppel Inapplicable to Issues Not Actually Litigated and Determined in Deal..................... 900 b. Collateral Estoppel Technically Applicable to Issues Actually Litigated and Determined in Deal............... 903 3. Columbus and Dayton II Have Not Significantly Changed the Law Applicable to the Issues Actually Litigated and Determined in Deal........................ 904 4. Columbus and Dayton II Present No Reason, Not Discernible in 1975, to Justify an Exception to Collateral Estoppel With Respect to Issues Actually Litigated and Determined in Deal............ 906 IV. Conclusions ......................... 907 A. Issues Not Actually Litigated and Determined in Deal............... 907 B. Issues Actually Litigated and Determined in Deal.................... 908 C. Practical Effect on Conclusions on Admissibility and Consideration of PreJuly 26, 1965 Evidence............. 908 Tentative Agenda For Meeting Between Court and Counsel on Friday, February 26,1982 ...... 909 Appendix................................ 910 DECISION AND ENTRY CONCERNING APPLICABILITY OF COLLATERAL ESTOPPEL; CONFERENCE SET RICE, District Judge. INTRODUCTION On October 17, 1980, the Court met with counsel for all parties in this school desegregation case for the primary purpose of discussing the Court’s Entry of October 16, 1980, “Setting Forth This Court’s Interpre tation of Sixth Circuit Opinion in Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975).” (doc. # 476) In the Entry, the Court stated its opinion that the Sixth Circuit’s decision, if applicable in this case, foreclosed the Bronson plaintiffs from relitigating the issues raised and resolved in the first Cincinnati school desegregation litigation. Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D.Ohio 1965) (Deal I), aff’d, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967); Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir.. 1969) (Deal II), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971). Therein, Judge Peck had found that the Cincinnati Board of Education was not liable or legally responsible for the racial composition of the Cincinnati school system in 1965, because the racial imbalance existing in the system at that time had not been intentionally caused by the practices and policies of the board. In short, the Court found no intent to discriminate or segregate on the part of the school board, and thus, no violation of plaintiffs’ fourteenth amendment rights. This Court concluded that the Sixth Circuit had determined that Deal I and II were still good law in 1975, and that the Bronson plaintiffs were collaterally estopped from attacking Judge Peck’s findings of fact and conclusions of law. In reaching that conclusion, this Court necessarily adopted the position taken by the Sixth Circuit that, between July 26, 1965 (the date of the District Court’s decision in Deal I) and September 24, 1975 (the date of the Sixth Circuit’s Bronson decision), there had been no significant changes in the law applicable to this case that would render the application of collateral estoppel inappropriate. A secondary purpose of the October 17 meeting was to discuss briefly the question currently before the Court, namely, whether the Sixth Circuit’s 1975 Bronson opinion is now obsolete in light of the Supreme Court decisions rendered subsequent to its filing, thereby making the application of collateral estoppel inappropriate at this juncture. This question was raised by plaintiffs a few days prior to the meeting. See, Plaintiffs’ Memorandum in Support of the Admissibility of Pre-1965 Evidence Against the State and Cincinnati Defendants, October 14, 1980. (doc. # 475). The Court’s October 16, 1980, Entry was explicitly limited to an interpretation of the Sixth Circuit’s 1975 Bronson opinion, and did not address what, if any, impact the intervening Supreme Court decisions might have on that opinion. Thus, at the October 17 meeting, the Court requested that the defendants submit memoranda in response to plaintiffs’ position, and afforded plaintiffs an opportunity to reply thereto. On November 24, 1980, the matter came on for an oral hearing. I. Positions of the Parties The parties have skillfully and exhaustively advocated their positions on the issue, both in writing, see, doc. # 475, 481, 483, 485, 488, and at the oral hearing. A detailed reiteration of the written memoranda would be redundant and would serve no useful purpose. Therefore, the Court will pause only briefly to highlight the positions which have been presented. A. Plaintiffs Plaintiffs contend that the Supreme Court’s decisions in Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) (Columbus), and Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) (Dayton II), “mark a significant development in the constitutional law of school desegregation.” (doc. # 475, at 4). Plaintiffs assert that, in these two cases, the Supreme Court approved a new theory of liability in school desegregation cases, referred to by them as the “pre-Brown” theory, and that this theory had not been developed, articulated or suggested in 1965, and “was not apparent at the time of the Sixth Circuit’s 1975 Bronson decision.” Id. at 13. According to plaintiffs, under this theory, a trial court’s initial inquiry focuses on whether a school board had, by remote intentionally segregative actions, created and maintained a racially dual school system when the Supreme Court rendered its landmark decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I). If this threshold question is answered affirmatively, that is, if the court finds that the school system was a racially dual one as of 1954, the court then focuses on the boards’ actions, inactions and policies in the period subsequent to 1954, to determine whether the board had effectively met its affirmative duty to dismantle the duality extant in 1954. Plaintiffs maintain that this “pre-Brown” theory was neither presented nor litigated in Deal, wherein the courts and the plaintiffs treated the pr e-Brown historical facts regarding the Cincinnati school system as largely irrelevant to the question whether the board had intentionally caused the racial imbalance that existed when Deal was filed. They further contend that if the “pre-Brown” theory were applied to the unchanging historical facts, it would now be abundantly clear that, as of 1954, the Cincinnati Board of Education operated a “classic state-imposed dual school system,” doc. # 475 at 7, and that this dual system remained unliquidated in 1965. Since the Deal courts only considered the board’s policies and practices still in existence when the suit was commenced in reaching the conclusion that the school board was not liable or legally responsible for the racial composition of the Cincinnati school system in 1965, and did not consider whether the board had created and maintained a dual system as of 1954, which remained unliquidated in 1965, plaintiffs contend that Deal would be decided differently under Columbus and Dayton II, and that the Deal judgment is, therefore, manifestly wrong in light of the intervening decisions. For these reasons, plaintiffs contend that the Sixth Circuit’s 1975 Bronson opinion is now obsolete in light of the intervening changes in the law, and that the doctrine of collateral estoppel is, therefore, inapplicable in the present case. Alternatively, plaintiffs argue that even if collateral estoppel is not altogether inapplicable, they are nonetheless entitled to proceed with their proof under the “preBrown” theory, as a new charge or issue, which was not litigated in Deal, because the Deal courts treated pr e-Brown historical facts as irrelevant to the extent that they considered them at all. Plaintiffs further assert that the state defendants are not entitled to assert collateral estoppel based on Deal to preclude plaintiffs from attempting to prove primary state liability, even prior to 1965, because this issue was never litigated in Deal. Finally, plaintiffs urge the Court to conduct a trial on the pre-1965 facts, unrestrained by any preclusive restrictions, in order that those facts can be assessed in light of current legal principles. B. Defendants The defendants in their memoranda and during oral argument did not necessarily stress the same points in opposition to the plaintiffs’ contentions. However, they are unanimous in their contention that neither Columbus nor Dayton II significantly changed the law of school desegregation subsequent to the Sixth Circuit’s Bronson opinion in 1975. They assert that the decisions in Columbus and Dayton II are fully grounded in the Supreme Court’s pre-1975 decisions, and merely reflect an application of the earlier authorities to different fact situations. Because the Sixth Circuit rejected the claims of both the Deal and Bronson plaintiffs that any pre-1975 decisions had so changed the law of school desegregation as to warrant a departure from the application of collateral estoppel, the defendants urge that it would be inappropriate for this Court to depart from that stance on the basis of more recent decisions that simply follow and apply the pre-1975 precedent. The Cincinnati and Suburban defendants also briefly respond to plaintiffs’ alternative contention that they (the plaintiffs) are not collaterally estopped from presenting pre-1965 evidence in an attempt to prove pre-1965 liability under the “pre-Brown ” theory, because this matter was not litigated in Deal. The Cincinnati defendants flatly disagree that the matter was not litigated in the prior suit. They state that “[i]n Deal, this Court found as a matter of fact that at the time of the Brown decision the Cincinnati School System was not a racially dual one but, to the contrary, that it was a unitary, non-segregated school system,” doc. # 481, at 13, and assert that this finding was central to the Sixth Circuit’s ruling that plaintiffs are collaterally estopped from retrying Deal. Id. The Suburban defendants are of a similar opinion. They contend that plaintiffs’ new, “pre-Brown” theory does not represent a new charge or issue that was not litigated in Deal. It is their position that, because this theory is related to the subject matter and is relevant to the issues adjudged in Deal, “Deal is conclusive on the new theory of plaintiffs.” (doc. # 485, at 17). These defendants suggest that the doctrine of collateral estoppel would be rendered meaningless if a party were permitted to raise, in a second action, new or different legal theories which could have been, but were not raised in the prior action. Id. II. Summary of Discussion In the discussion section, the Court sets forth in minute detail its reasons for concluding that the Sixth Circuit’s 1975 Bronson opinion has been rendered obsolete to the extent that it forecloses any and all inquiries prior to July 26, 1965, on the ground that Columbus and Dayton II, by supplementing the body of school desegregation law existing in 1975, have established the propriety and necessity of considering certain issues that were not addressed in Deal. The Court also sets forth its reasons for concluding that Columbus and Dayton II provide no basis for departing from the Sixth Circuit’s 1975 Bronson opinion to the extent that it forecloses the relitigation of the issues that were actually litigated and determined in Deal, should these issues become relevant in the case at bar. The following summary is not intended as a substitute for the discussion itself; rather, it is merely intended to apprise the parties of the Court’s approach in determining the appropriate application of collateral estoppel under the now-prevailing Supreme Court authority, and to state, in general terms, the underpinnings of the Court’s conclusions. In order to explain fully this Court’s reasons for concluding that the Sixth Circuit’s 1975 Bronson opinion has, in part, become obsolete in light of Columbus and Dayton II, it is necessary to explore and identify the factors which distinguish these cases from their pre-1975 predecessors. The reasons for so doing should be fairly obvious. In Deal II, the plaintiffs contended that three intervening Supreme Court decisions had changed the law since the judgment in Deal I. The District Court and the Sixth Circuit considered these eases, but concluded that they had not changed any aspect of the law applicable to Deal. In Bronson, as argued before the Sixth Circuit in 1975, plaintiffs contended that certain aspects of Deal had been “overtaken” by Supreme Court cases decided after Deal, thereby rendering the application of collateral estoppel inappropriate. The plaintiffs also argued that the public policy considerations in this school desegregation case warranted an exception to the application of collateral estoppel. On the basis of the authority cited, the Sixth Circuit found that the law of school desegregation had been refined and clarified since Deal II, but rejected plaintiffs’ claim that the intervening Supreme Court cases had “overtaken” or significantly changed any aspect of the law applied in Deal. The court also rejected plaintiffs’ public policy arguments. Having thus considered the circumstances of the case, as they then appeared, together with the Supreme Court authority available at that time, the Sixth Circuit concluded that the doctrine of collateral estoppel was applicable, and that there was no compelling reason to except plaintiffs from its application. This Court is bound by the Sixth Circuit’s determinations in both Deal II and the 1975 Bronson opinion, insofar as they are grounded upon pre-1975 Supreme Court precedent. The Court has no authority to question or depart from these determinations. Therefore, before it can declare itself released, in any way, from the Sixth Circuit’s 1975 Bronson opinion, the Court must demonstrate that Columbus and Dayton II have affected or contributed to the law of school desegregation, in a way that the earlier decisions did not. To this end, Part I of the Discussion is devoted to an examination of the pre-1975 Supreme Court decisions that were considered by the Sixth Circuit in Deal II and Bronson, and were held to have changed no law applicable to Deal. The Court begins with the Supreme Court cases presented to the Sixth Circuit in Deal II. After a brief discussion of the cases, themselves, the Court summarizes the reasons given by the District Court and Sixth Circuit for rejecting the Deal plaintiffs’ contentions that these decisions were applicable to Deal or changed any law applicable thereto. This Court then adds some additional comments to highlight why these cases, all dealing with issues concerning remedies to achieve desegregation in systems which had been segregated under state law in 1954, were distinguishable from, and, therefore, inapplicable to Deal, which involved the threshold issue of liability in a school system that had not been racially dual pursuant to state law at the time of Brown I, or for almost seventy years before that landmark decision. Thereafter, the Court turns to the two Supreme Court cases relied upon by the Bronson plaintiffs in 1975, in support of their contention that certain aspects of Deal had been overtaken, thereby rendering the application of collateral estoppel inappropriate. The discussion of Swann, the first of the two cases, is relatively brief. This Court notes that the Sixth Circuit, itself, did not discuss Swann in detail, but simply reiterated that remedy cases, which addressed matters arising only after a school system has been adjudged constitutionally deficient, were distinguishable from a case like Deal, which involved the threshold question of liability. This Court identifies the similarities between Swann, and the three remedy cases considered by the Sixth Circuit in Deal II. It also illustrates why none of the developments emerging from Swann were applicable to Deal, and would only have been applicable if a constitutional violation had been established in Deal. The Court’s discussion of Keyes, the second of the two cases considered in Bronson, is much more detailed. As the first school desegregation case in which the Supreme Court addressed the requisite elements for a finding of current, systemwide de jure segregation in a school system which had never been racially segregated under state law, Keyes, unlike the remedies cases, presented a situation much closer to Deal, where there had been no state-imposed segregation since 1887. This Court, therefore, considered it imperative to look closely at Keyes, and at the Sixth Circuit’s reasons for concluding that the case, despite its general similarity to Deal, and despite its contributions to the law of school desegregation, presented no reason for permitting plaintiffs to present any evidence for the purpose of attempting to establish a constitutional violation prior to July 26, 1965. Initially, the Court sets forth the general characteristics of Keyes which, similar to Deal, distinguished it from the previously considered remedies cases. Then, as a predicate for further discussion, the Court takes a closer look at Keyes, tracing its progression from the trial level to the Supreme Court, to highlight certain nuances that are not discernible when the case is described only in general terms. In particular, the Court focuses on the precise question decided by the Supreme Court, from which most of the innovative principles emerged. Upon completion of this close examination of Keyes, the Court turns to the Sixth Circuit’s discussion of Keyes in the Bronson decision. The Court specifically notes that in Bronson, the Sixth Circuit considered Keyes to determine whether the standard to which the Deal plaintiffs were held, i.e., to prove that the board had implemented policies and practices with the purpose to segregate, had been eliminated in favor of a test that looked only to the effects of, rather than the motivation behind, the board’s actions. Thereafter, this Court examines Keyes, in greater detail than was necessary to resolve the narrow question presented in Bronson, to consider why most of the principles developed therein were not directly applicable to Deal. This inquiry reveals that Keyes gave no indication that the Deal courts’ assessment of plaintiffs’ evidence was unduly restrictive or that plaintiffs’ evidence on the board’s discontinued programs and practices raised any issues relevant to the question whether the school board was liable or legally responsible for the racial imbalance existing in the system, as of July 26, 1965. It also provides underlying support for this Court’s conclusion that there are certain relevant or potentially relevant pre-July 26, 1965 issues in this case, as they now appear in light of the supplementary developments in the law of school desegregation emerging from Columbus and Dayton II, that were not addressed in Deal, to which collateral estoppel is inapplicable. By attempting to apply the methodology developed by the Supreme Court in Keyes to Deal, the Court demonstrates that Deal is not susceptible to a strict Keyes -type analysis. Although the two cases shared certain general similarities, Keyes ceased to be directly analogous or applicable to Deal at the point where the lower Keyes courts and the Deal courts, applying virtually the same standard in their initial inquiries into plaintiffs’ claims of intentional segregation by the school authorities, reached contrary conclusions on the basis of evidence spanning an almost identical period of time pri- or to the commencement of each litigation. Whereas the lower Keyes courts found that the Denver school authorities had used numerous intentionally or purposefully segregative devices in Park Hill between 1960 and 1969, which supported a finding of contemporary de jure segregation therein, the Deal courts, considering evidence between approximately 1956 and 1965, found that the board had not only not employed any comparable devices, but had actually attempted to improve the racial balance in some schools. By comparing the factual findings made by Judge Peck in Deal II with those made by the District Court in Keyes, the Court illustrates the significant differences between what was occurring in a substantial portion of the Denver school district, and what was apparently not occurring in any portion of the Cincinnati school system, in the decade preceding each litigation. Because the evidence considered by the Deal courts failed to support a finding of contemporary intentional or de jure segregation in any portion of the system, the Deal courts were not confronted with the question actually considered and decided by the Supreme Court in Keyes, namely, whether, and to what extent, a finding of contemporary de jure segregation in a substantial portion of the system is relevant in assessing plaintiffs’ claim of current de jure segregation in the remainder of the system. Moreover, because the Keyes petitioners were held to have met their initial burden of proof on the basis of their evidence of intentional segregation in the Park Hill schools during the decade prior to 1969, the Supreme Court had no occasion to establish any guidelines or methodology for assessing evidence of a school board’s remote programs or practices in the context of plaintiffs’ initial burden of proof. By declining to review the lower courts’ finding in Park Hill, the Supreme Court simply had no opportunity to consider what, if any, legal significance should be accorded to the type of evidence to which the Deal courts accorded little or no import, and about which the Sixth Circuit made no ruling, i.e., the schools, programs and practices discontinued before the lawsuit was filed. Since almost all of the principles developed by the Supreme Court in Keyes were grounded in the finding of contemporary de jure segregation in Park Hill, they had no direct application to Deal where, after conducting similar inquiries, addressing similar issues and applying a similar standard, the Deal courts reached a contrary conclusion on the threshold question of liability. Thus, under the circumstances, as they then appeared, Keyes provided no support for permitting the Bronson plaintiffs to present any evidence for the purpose of attempting to establish a constitutional violation prior to July 26, 1965. After completing a review of the Supreme Court authorities considered by the Sixth Circuit as of 1975, and elaborating on the reasons why almost none of the principles developed therein could be said to have been directly applicable to Deal, this Court moves to Part II of the Discussion, which considers Columbus and Dayton II. Initially, the Court sets forth what it perceives to be the evolutionary, as opposed to revolutionary, developments in the law of school desegregation signaled by these cases. Specifically, the Court discusses the Supreme Court’s extension of Keyes’ principles to these cases, which involved school systems that had been officially dual at the time of Brown I, but which were not so segregated at that time under any state authorization or permission. The Court also stresses that, in these two cases, the Supreme Court unequivocally established that where plaintiffs’ evidence demonstrates the existence of an official, dual school system at the time of Brown I, created or maintained by remote acts of the local school authorities, the fact that the duality was not sanctioned by state law is irrelevant. At this point, the Court steps back to re-examine Deal II, wherein the Sixth Circuit’s inquiry into the causes of the segregated condition of the system, as of July 26, 1965, was limited to issues raised with respect to specific schools, programs and practices that were still in existence when the lawsuit was filed. The Court focuses on the position adopted by the Sixth Circuit in Deal II, which accorded paramount importance to the fact that segregation had been outlawed in Ohio in the late nineteenth century, and which accorded a lack of import to any of the board’s programs and practices discontinued before the suit was commenced. Of particular interest is the Sixth Circuit’s explicit statement that it need not make any ruling with respect to any schools, programs or practices discontinued before the suit was filed. Having set forth and discussed the Sixth Circuit’s position on the legal import of historical facts in Deal, the Court then briefly sets forth its reasons for concluding that the soundness of this position had not been questioned, or, in any way, impugned by Supreme Court authority existing when the Sixth Circuit rendered its 1975 Bronson opinion. The remedy cases had involved statutorily-mandated dualities, and, therefore, raised no questions regarding a school board’s remote acts in a system where statutory segregation had been abolished decades before Brown I. Keyes did not address the potential legal significance of a school board’s remote acts in the context of petitioners’ initial burden of proof. In Keyes, the prima facie case of current, systemwide de jure segregation was predicated on the finding of contemporary de jure segregation in Park Hill, that is, on the basis of the evidence of the board’s actions during the decade prior to commencement of the litigation. Whether or not such a showing could be predicated on a board’s remote acts was not a question presented or considered in Keyes. Thus, as of 1975, the Sixth Circuit’s position in Deal II was consistent, or could be reconciled with all available Supreme Court authority. This compatibility is effectively eliminated by the Supreme Court’s opinions in Columbus and Dayton II. In those cases, the Court supplemented or added to the pre-existing body of school desegregation law by settling certain matters which had not been raised or considered in any of the pre-1975 cases. More specifically, Columbus and Dayton II are the first two cases in which plaintiffs were held to have met their initial burden of proof, at least in part, on the basis of evidence of the board’s remote intentionally segregative practices and which, therefore, established the necessity of conducting an initial inquiry into such practices. Unlike the Sixth Circuit in Deal II, the Supreme Court in Columbus and Dayton II, attributed virtually no legal significance or relevance to the fact that the State of Ohio had abolished segregated schooling in 1887-1888. Instead, the Supreme Court looked to, and drew its legal conclusions from the plaintiffs’ evidence regarding the board’s remote acts. Based on that evidence, the Court found that, prior to 1954, the school authorities had acted in contravention of state law by implementing various intentionally segregative devices, which either created or maintained segregated schooling. Relying on this evidence, the Court concluded that the racial segregation existing in the systems at the time of Brown I was not merely a fortuitous happenstance. Rather, it found in both cases that the evidence supported a finding that the school authorities were officially operating racially dual school systems in 1954. Once this finding was made, the burden shifted to the school board to show that it had taken effective action to dismantle the pre-Brown duality. The Supreme Court rejected the opportunity to impose a lesser constitutional duty to desegregate in this situation than it had where the dual system had been sanctioned by law, or had been created by a school board’s contemporary, as opposed to remote, intentionally segregative acts. Because the Supreme Court’s position, as developed in Columbus and Dayton II, is almost diametrically opposed to the one taken by the Sixth Circuit in Deal II (i.e., that segregative activities which had been discontinued prior to suit were of no relevance), this Court concludes that the Sixth Circuit’s position, although legally sound when adopted, and while retaining all semblance of vitality as of 1975, has now ceased to be legally viable in cases similar to Deal. The preceding conclusion leads the Court to Part III of the Discussion, which reconsiders the Sixth Circuit’s 1975 Bronson opinion, and the appropriate application of collateral estoppel in light of Columbus and Dayton II. As a starting place, the Court sets forth the governing principles of the doctrine and the necessary inquiries thereunder. After a threshold determination is made that res judicata is inapplicable, the three potentially relevant collateral estoppel inquiries are: (1) whether there is an identity between the issues in the second action and those actually litigated and determined in the prior action; if so, (2) whether there have been any changes in the controlling facts or law sufficient to render the application of collateral estoppel inappropriate; and, if the issues are determined to be substantially the same, and there have been no significant changes in the controlling facts or law, (3) whether there is any other special reason presented in the second action that would justify an exception from the general operation of the doctrine. The first of the above inquiries, regarding the identity of issues, is a threshold question to determine the extent to which collateral estoppel is technically applicable. Where the threshold inquiry discloses an identity between the issues in the second action and those actually litigated and determined in the prior action, the second and third inquiries are conducted to determine the appropriate application of collateral estoppel. This Court then returns to the 1975 Bronson opinion to determine how the Sixth Circuit answered each of these questions. After determining that res judicata did not apply, that Court, at least implicitly, determined that the issues in this case, as they then appeared, were substantially the same as those decided in Deal. With respect to the second inquiry, the Sixth Circuit explicitly rejected the plaintiffs’ contention that there had been any significant changes in the controlling law. The Sixth Circuit also conducted the third and final inquiry. Although cognizant of, and sensitive to the public policy against the continuation of racial segregation in public schools, the Court determined that the proper balance between this and the competing public policy in favor of finality of judgments would be achieved by applying “issue preclusion,” i.e., collateral estoppel. Having found an identity of issues but no significant changes in the law and no other sufficiently compelling reason to justify an exception, the Court concluded that collateral estoppel should be applied to bar the relitigation of the issues decided in Deal. The Court, therefore, prohibited all inquiries into the board’s segregative intent and its actions, inactions and policies prior to July 26, 1965, for the purpose of establishing a constitutional violation. When this Court reconsiders the same questions in light of the supplementation to the law of school desegregation brought about in Columbus and Dayton II, it concludes that the absolute ban against any and all inquiries prior to July 26, 1965, as set forth in the Sixth Circuit’s 1975 Bronson opinion, has become obsolete, but that its mandate foreclosing the relitigation of the issues that were actually litigated and determined in Deal retains vitality. Preliminarily, the Court notes that it has become aware of no reason for departing from the Sixth Circuit’s determination that the more strict rules of res judicata are inapplicable to this case. Thereafter, the Court reconsiders the threshold collateral estoppel question, regarding identity of issues, in light of Columbus and Dayton II, where the Supreme Court supplemented, rather than overruled or radically departed from its pre-1975 authority, by combining and extending the application of certain pre-1975 legal principles to matters it had not previously considered. Under this inquiry, the Court concludes that there are several relevant or potentially relevant pre-July 26, 1965 issues in this case, as they now appear in light of the evolutionary, as opposed to revolutionary, developments emerging from Columbus and Dayton II, that are not substantially the same as, or identical to those actually litigated and determined in Deal. More specifically, the Court concludes that there is a category of threshold issues directly relating to the board’s remote acts, (i.e., as of 1954 or before), and a second category of issues relating to the board’s post-Brown actions, inactions or policies, which may arise from the findings on the threshold issues, that were neither contemplated nor considered in Deal. First, because the Sixth Circuit, in Deal II, accorded paramount legal import to the fact that the State had outlawed segregated schooling in 1887, and concluded from this fact that the Cincinnati school system had been desegregated for some 70 years before Brown I, it made no ruling on any school, program or practice discontinued before the lawsuit was filed and made no inquiry into the board’s remote or preBrown acts. Instead, it limited the scope of its inquiry into the causes of the racial imbalance existing as of July 26, 1965, to the board’s policies and practices between roughly 1956 and 1965. The Sixth Circuit did not, therefore, address the threshold issues which, under Columbus and Dayton II, must now be considered in cases where plaintiffs present evidence of the board’s remote acts as part of their initial burden of proof. Generally stated, these broad threshold issues, upon which plaintiffs have the burden of proof are: (1) whether the board was officially operating a dual system at the time of Brown I, created and/or maintained in contravention of state law by the board’s remote, intentionally segregative acts; or (2) whether, as a result of the board’s remote, intentionally segregative acts, a substantial portion of the school system was segregated by race in 1954 which, when coupled with proof that the system is currently highly segregated by race, will establish a prima facie case of current, systemwide de jure segregation. Second, because the Sixth Circuit considered the board’s remote or discontinued programs and practices to be irrelevant, to the extent that it considered them at all, and did not address the threshold issues identified above, it could not and did not consider the issues which are raised and need only be considered if plaintiffs prevail on the threshold issues, as they did in Columbus and Dayton II. Stated generally, and corresponding to the threshold issues from which they arise, the issues relating to the board’s post-Brown actions, inactions and policies, upon which the board, rather than plaintiffs, have the burden of proof are: (1) if plaintiffs’ proof supports a finding that the board was officially operating a dual school system at the time of Brown I, whether the board effectively dismantled same in the subsequent years, or whether its actions, inactions and policies in the ensuing years perpetuated and/or exacerbated the condition extant in 1954; or (2) if plaintiffs make a prima facie showing of current, systemwide de jure segregation, predicated on a finding that a substantial portion of the system was segregated in 1954, whether the board’s remote, intentionally segregative acts, in any way, caused or contributed to the current condition of segregation. The board’s failure to carry its burden on these issues would require judgment for plaintiffs and warrant a system-wide desegregation order. The Court recognizes that the resolution of this second category of issues, which may arise from the threshold inquiries, would undoubtedly turn, at least in part, on the evidence previously considered in Deal. However, the Court explains that the potential sameness of evidence should not be confused or equated with a sameness or identity of issues, In Deal, the burden of proof, at all times, remained upon plaintiffs and the inquiry therein was limited to determining whether, in the absence of a duty to desegregate arising from an established constitutional deficiency existing at the time of Brown I, the board had acted with segregative intent between approximately 1956 and 1965. In contrast, if the Bronson plaintiffs prevail on the threshold issues, they will have established that the system was unconstitutionally constituted in 1954 and the continuing, affirmative duty to correct that deficiency would attach to the board. Thereafter, the school board would have the burden of proof, and the evidence previously considered in Deal would be considered herein on the issue whether the board had remedied the effects of its remote, intentionally segregative acts, or whether, on the contrary, the current condition of segregation can be traced to those remote acts. Having accorded virtually no legal import to the board’s discontinued programs and practices in Deal II, the Sixth Circuit did not conduct the now mandatory threshold inquiries, nor did it address the issues that only arise as a result of those inquiries. Under the well-settled principles of collateral estoppel, the doctrine is only applicable to preclude the relitigation of issues that were actually litigated and determined in a prior action; it does not operate to preclude the litigation of issues that might have been raised and determined, but were not. Therefore, the Court concludes that collateral estoppel is wholly inapplicable to those two categories of issues which, under Columbus and Dayton II, are or may become relevant in this case and which either directly relate to, or potentially arise from plaintiffs’ evidence regarding the schools, programs and practices discontinued by the board before commencement of the Deal litigation. Although the Court acknowledges the possibility that this case could be resolved without any overlapping with the pre-July 26, 1965 issues actually litigated and determined in Deal, as distinguished from an overlapping or similarity of evidence, the Court recognizes that this is not an inevitable result. On the contrary, if plaintiffs do not prevail on the threshold issues relating to the board’s remote acts, the second category of issues relating to the board’s post-Brown policies and practices, upon which the board would have the burden of proof, would not be before this Court, as they were in Columbus and Dayton II. Instead, and in contrast to the more recent Supreme Court cases, the burden of proof would remain upon plaintiffs and the relevant inquiry with respect to the board’s post-Brown programs and practices would focus on whether, absent a duty to improve the racial balance arising from an established constitutional deficiency in the system at the time of Brown I, the board had acted with segregative intent in the subsequent years, thereby causing the former unitary system to become de jure segregated. At least with respect to the actions, inactions and policies of the board between approximately 1956 and July 26, 1965, the issues that would become relevant herein are substantially the same, if not identical to those actually litigated and determined adversely to the Deal plaintiffs. With respect to these issues, which meet the threshold- identity requirement, the Court concludes that the doctrine of collateral estoppel remains technically applicable. The conclusion that there may remain relevant issues in this case which are substantially the same as those decided in Deal, if plaintiffs do not prevail on the threshold issues, to which collateral estoppel is technically applicable, requires the Court to consider whether it remains appropriate to invoke the doctrine with respect to these issues. The Court, therefore, proceeds to the second collateral estoppel inquiry to determine whether Columbus and Dayton II have so changed the law of school desegregation since 1975 as to render the Sixth Circuit’s 1975 Bronson opinion obsolete to the extent that it forecloses the relitigation of the pre-July 26, 1965 issues that were actually litigated and determined in Deal. In responding to this question, the Court reiterates that Columbus and Dayton II did not overrule any pre-1975 Supreme Court precedent nor did they radically depart therefrom. Rather, in these cases, the Supreme Court supplemented or added to the body of school desegregation law which has been steadily evolving since Brown I, by combining and extending the application of certain pre-1975 legal principles to matters which it had not previously had an occasion or opportunity to consider. This supplementation, which is evolutionary, as opposed to revolutionary, in nature established the propriety and necessity of considering the threshold issues that were not addressed in Deal, regarding the board’s remote acts, and the issues that may arise as a result of the threshold inquiries which were, likewise, not addressed in Deal. However, Columbus and Dayton II have not significantly changed or altered any of the legal principles applicable in a case where the school system involved is found to have been unitary, in a constitutional sense, at the time of Brown I. Thus, if the evidence adduced at trial supports a finding that the Cincinnati school system was truly a unitary one as of 1954, that is, if plaintiffs do not prevail on the threshold issues directly relating to the board’s remote acts, the posture of this case will be virtually the same as it was in Deal II, where the inquiry focused on whether, in the absence of a pre-existing duty, the board had acted with segregative intent in the years after Brown I, thereby causing or contributing to the racial imbalance existing, as of July 26, 1965. The resolution of the issues based solely on the board’s actions, inactions and policies after 1954, through July 26,1965, as well as those based on the board’s actions, inactions and policies after Deal, would be controlled, not by any new principles announced in Columbus and Dayton II, but rather, by principles of school desegregation law developed prior to 1975. Thus, although the supplementary developments emerging from Columbus and Dayton II have established the propriety and necessity of considering certain relevant and potentially relevant issues that were not addressed in Deal, the Court concludes that, with respect to the issues that were actually litigated and determined in Deal, Columbus and Dayton II have not significantly changed or altered any aspect of the applicable law since 1975. Therefore, under the second collateral estoppel inquiry, the Court concludes that' the Sixth Circuit’s 1975 Bronson opinion retains full vitality to the extent that it forecloses the relitigation of the pre-July 26,1965 issues decided in Deal. The Court then conducts the third and final collateral estoppel inquiry and concludes that Columbus and Dayton II do not present any other compelling reasons, not discernible in 1975, that would now justify excepting plaintiffs from the application of collateral estoppel with respect to the issues actually litigated and determined in Deal. The only differences between the circumstances of this case, as they now appear and those existing in 1975, all relate to the propriety and necessity of resolving issues to which collateral estoppel is inapplicable because they were not addressed in Deal. Once again, if plaintiffs do not satisfy their initial burden of proof on the threshold issues, regarding the board’s remote practices, the circumstances of this case will thereafter be essentially the same as they were when the Sixth Circuit considered the appropriate application of collateral estoppel in 1975. Given the Sixth Circuit’s specific consideration of the circumstances of this case, as they then appeared, and its rejection of plaintiffs’ claim that a departure from the general operation of the doctrine was warranted, the Court concludes that the Sixth Circuit’s 1975 Bronson opinion, foreclosing the relitigation of the preJuly 26, 1965 issues actually litigated and determined in Deal, remains binding. III. Synopsis of Conclusions Upon completion of the third collateral estoppel inquiry, the Court moves to Part IV of the Discussion, which capsulizes the Court’s conclusions based on all of the preceding discussion. The Court declares that the Sixth Circuit’s 1975 Bronson opinion has been rendered obsolete by Columbus and Dayton II to the extent that it forecloses any and all inquiries into the board’s segregative intent and constitutional violations prior to July 26, 1965. The Court stresses that it reaches this conclusion not because Columbus and Dayton II have significantly changed the law, in the sense of overruling or radically departing from any pre-1975 Supreme Court authority, but because the supplementary developments emerging from these cases have established the propriety and necessity of considering numerous relevant and potentially relevant preJuly 26,1965 issues that are not substantially the same as, or identical to those actually litigated and determined in Deal. In other words, although the major thrust of the parties’ arguments, both orally and in writing, dealt with the second collateral estoppel question, that is, whether Columbus and Dayton II have so changed the law since 1975 that it would no longer be appropriate to invoke collateral estoppel, this Court has reached its conclusion, that the Sixth Circuit’s 1975 Bronson opinion has, in part, become obsolete, under the threshold collateral estoppel inquiry regarding identity of issues. Plaintiffs raised this matter in their alternative contention that, even if collateral estoppel is not altogether inapplicable in this case, they should nonetheless be permitted to proceed under the pr e-Brown theory, as a charge or issue that was not litigated in Deal, and was not recognized under the pre-1975 Supreme Court authority. Insofar as the pr e-Brown theory refers to the two categories of issues that do not share the requisite identity with those decided in Deal, the Court agrees that plaintiffs are entitled to present their proof unrestrained by the July 26, 1965 cut-off date established in the Sixth Circuit’s 1975 Bronson opinion. However, the Court rejects plaintiffs’ primary contention that collateral estoppel is now altogether inapplicable because Columbus and Dayton II have significantly changed the law of school desegregation since 1975. The doctrine remains fully and appropriately applicable with respect to the issues that were actually litigated and determined in Deal. Thus, under the threshold collateral estoppel inquiry, regarding identity of issues, the Court concludes that the doctrine of collateral estoppel is wholly inapplicable to the threshold issues directly relating to the board’s remote acts, and to the issues relating to the board’s post-Brown actions, inactions and policies, which will arise and become relevant herein only if plaintiffs prevail on the threshold issue. With respect to these issues, the Court specifically releases plaintiffs from the July 26, 1965 cut-off date established by the Sixth Circuit in its 1975 Bronson opinion. With respect to these issues, the Court also specifically releases plaintiffs from the restrictions set forth in its Entry of October 16, 1980, on the presentation and consideration of preJuly 26, 1965 evidence. The preclusion order imposed upon plaintiffs by Judge Porter on March 10, 1980, is not affected, and therefore, remains in full force and effect. Notwithstanding the above, the Court further concludes that the vitality of the Sixth Circuit’s 1975 Bronson opinion has, in no way, been impaired or diminished by Columbus and Dayton II to the extent that it forecloses the relitigation of the pre-July 26, 1965 issues that were actually litigated and determined in Deal. Whether these issues will become relevant in this case depends upon the determinations made on the threshold issues that were not addressed in Deal, to which collateral estoppel does not apply. However, in the event that plaintiffs’ evidence regarding the board’s remote acts fails to support a finding that the board was officially operating a dual or substantially segregated system in contravention of state law at the time of Brown I, the burden of proof will remain upon plaintiffs, and the issues that would thereafter become relevant with respect to the board’s actions, inactions and policies after Brown I through July 26, 1965, are essentially the same as those settled by the Deal judgment. The Court, therefore, concludes that collateral estoppel is technically applicable to these issues. Moreover, because Columbus and Dayton II have not significantly changed any aspect of the law applicable to these issues, and because the more recent cases present no compelling reason, not discernible in 1975, that would now justify excepting plaintiffs from the general operation of the doctrine, the Court concludes that collateral estoppel is appropriately invoked to foreclose the relitigation of the issues decided in Deal. The practical effect of the Court’s ruling is that all of the plaintiffs’ evidence, both pre- and post-July 26, 1965, will be admissible at trial, subject to the normal operation of the Federal Rules of Evidence. Initially, the Court will consider plaintiffs’ preBrown evidence for the purpose of resolving the threshold issues that were not addressed in Deal. These inquiries will determine what issues will become relevant in this case with respect to the board’s post-Brown actions, inactions and policies, both before and after July 26,1965, and will also determine the purposes for which the evidence regarding the board’s programs and practices after Brown through July 26,1965 will be considered. If plaintiffs prevail on the threshold issues, the burden of proof will shift to the board, the second category of issues not addressed in Deal will be raised, and the parties’ pre-July 26, 1965 evidence will be considered, together with the post-July 26,1965 evidence, for the purpose of determining whether the school board is liable or legally responsible for the current racial composition of the Cincinnati Public Schools. If, however, plaintiffs do not prevail on the threshold issues, the burden of proof will remain on plaintiffs and, although the issues that were actually litigated and determined in Deal would be relevant, collateral estoppel applies to foreclose the relitigation of same. Consequently, plaintiffs’ claim of current de jure segregation will, at that point, be assessed only on the basis of evidence regarding the board’s actions, inactions and policies after July 26, 1965. None of the pre-July 26, 1965 evidence previously admitted will be considered for any purpose other than those expressly approved by the Sixth Circuit in its 1975 Bronson opinion, as interpreted by this Court in its Entry of October 16, 1980. DISCUSSION I. Pre-1975 School Desegregation Cases Considered by Sixth Circuit: Held to Have Changed No Law Applicable to Deal A. Green, Raney, and Monroe: Considered by District Court and Sixth Circuit in Deal II, 1968, 1969 1. Conclusion of District Court and Sixth Circuit: Inapplicability of Green, Raney, and Monroe to Deal On remand to the trial court in Deal II, 419 F.2d 1387, 1395 (6th Cir. 1968), for further factual findings, the plaintiffs contended that the law had been substantially modified by three Supreme Court decisions rendered subsequent to the Sixth Circuit’s opinion in Deal I, 369 F.2d 55 (6th Cir. 1966). The three cases presented similar issues, were argued together, and were decided by the Supreme Court on the same day. Green v. County Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) (Green); Raney v. Board of Education of the Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968) (Raney); and Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968) (Monroe). Each case involved a school system which had been racially segregated under compulsion of state statute in 1954, when the Supreme Court declared de jure or statutorily-imposed segregation to be unconstitutional. Brown I, 347 U.S. 483, 487, 74 S.Ct. 686, 688, 98 L.Ed. 873 (1954). Each school system remained racially segregated a year later, when the Supreme Court commanded the abolition of dual school systems existing pursuant to state statute in 1954. Brown v. Board of Education, 349 U.S. 294, 300-301, 75 S.Ct. 753, 756-57, 99 L.Ed. 1083 (1955) (Brown II). The petitioners in Green, Raney and Monroe sought injunctive relief against the respective school boards on the ground that each had continued to maintain a dual school system up to the filing of the lawsuits, despite the mandate to desegregate laid down in Brown II. Although, by the mid-1960’s, each school board had implemented a desegregation plan, the petitioners challenged the plans as falling short of bringing the systems into compliance with Brown II. In Green and Raney, the school boards had adopted “freedom of choice” plans, under which a pupil was allowed to select the school he would attend. Green, supra, 391 U.S. at 433-434, 88 S.Ct. at 1692; Raney, supra, 391 U.S. at 445, 88 S.Ct. at 1698. In Monroe, the school board had adopted a slightly different plan, known as a “free transfer” plan, which enabled a student originally assigned to one school to transfer freely therefrom, provided that the receiving school had space to accommodate the student. 391 U.S. at 453-54, 88 S.Ct. at 1702. The Supreme Court gave its most detailed analysis in Green, and the principles articulated therein were then applied in Raney and Monroe. The Court described the segregation existing in the New Kent County school system at the time of the litigation as “precisely the pattern of segregation to which Brown I and Brown II were addressed, and which Brown I declared unconstitutionally denied Negro school children equal protection of the laws.” 391 U.S. at 435, 88 S.Ct. at 1692. The Court stated: It was such dual systems that 14 years ago Brown I held unconstitutional and a year later Brown II held must be abolished; school boards operating such school systems were required by Brown II “to effectuate a transition to a racially nondiscriminatory school system.” 349 U.S. at 301, 75 S.Ct. at 757. 391 U.S. at 435, 88 S.Ct. at 1692 (emphasis in the original). In the face of a clearly established statutory duality in 1954, the Court viewed its task in Green as that of measuring “the effectiveness of respondent School Board’s ‘freedom-of-choice’ plan to achieve” the mandatory transition to a non-discriminatory, unitary system. Id. at 437, 88 S.Ct. at 1693. The Court framed the issue as follows: In light of the command of ... [Brown II], what is involved here is the question whether the Board has achieved the “racially nondiscriminatory school system” Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system. Id. (emphasis added). The Court acknowledged that “Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which require time and flexibility for a successful resolution.” Id. However, the Court stressed: School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the 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. Id. at 437-38, 88 S.Ct. at 1693-94 (emphasis added) (citations omitted). The Court remarked that the Board’s failure to initiate a desegregation plan until some 11 years after Brown I and 10 years after Brown II “could only have compounded the harm of such a system,” id. at 438, 88 S.Ct. at 1694, and then announced that “[s]uch delays are no longer tolerable . ... ” Id. The Court set forth the standard by which desegregation plans implemented by school boards which had formerly operated under statutorily-imposed segregation would, henceforth, be judged: “The burden on a school board today is to come forward with a plan that promises